author: Dwyer, J.

text:
    STATE of Washington, Appellant, v. Louis Earl JOHNSON Jr., Respondent.
    No. 77720-3-I
    Court of Appeals of Washington, Division 1.
    FILED: May 6, 2019
    Mary Kathleen Webber, Snohomish County Prosecutors Office, Prosecuting Attorney Snohomish, Snohomish County Prosecuting Attorney, J. Scott Halloran, Snohomish County Prosecuting Attorney-Criminal, Msc 504, 3000 Rockefeller Ave., Everett, WA, 98201-4061, for Appellant.
    Lila Jane Silverstein, Washington Appellate Project, 1511 3rd Ave. Ste. 610, Seattle, WA, 98101-3647, for Respondent.
    PUBLISHED OPINION
   Dwyer, J.

¶1 Our society and the law that reflects its organizing principles assume that citizens will trust law enforcement and believe the things that police officers tell them. For instance, when a police officer enters a schoolhouse and announces that an active shooter is nearby, society desires that those so informed believe the officer and act accordingly. Similarly, when a homeowner is awakened in the night by a police officer at the front door who announces that a wildfire is fast approaching, society desires that the officer be believed and that the homeowner acts accordingly. Indeed, examples of this societal desire seem endless.

¶2 Nevertheless, case law makes clear that a police officer, in the course of investigating criminality, does not violate either the federal or state constitution by lying to a potential suspect or witness. The need to sometimes do so has been repeatedly accommodated by the courts. But when police officers do choose to lie, they must recognize and accept the logical consequences of that decision.

¶3 One such consequence arises in the context of constitutional seizure analysis. This jurisprudence provides that, in a police-citizen encounter, no seizure of the person occurs unless-objectively viewed and under the totality of the circumstances-a reasonable person would not believe that he or she was free to terminate the encounter or decline the officer's requests. In analyzing the circumstances of such an encounter, a reasonable person is an innocent person. And reasonable innocent persons may be assumed to believe the truth of that which the police tell them.

¶4 In this case, Louis Johnson Jr. was found to be in unlawful possession of a firearm. Prior to that discovery, however, the police encounter with him had reached the point where-under the totality of the circumstances and objectively viewed-he had been seized. And, at the time of his seizure, the police lacked a lawful basis to seize him. Thus, the trial court properly granted his motion to suppress evidence of the gun found in his possession. We affirm.

I

¶5 Two Lynnwood police officers, Zach Yates and James George, were engaged in a proactive patrol late at night in an area known to have a high rate of criminal activity. The officers observed a silver vehicle enter a motel parking lot and park in a stall. After the vehicle came to rest, about a minute and a half passed without any person entering or leaving the vehicle. The officers became suspicious that its occupants were using drugs.

¶6 The officers, both of whom were armed and in uniform, approached the vehicle on foot and stood on opposite sides adjacent to the driver's and passenger's doors. They shined flashlights into the vehicle's interior to enable them to see the vehicle's occupants and ensure that neither was holding anything that could put the officers in danger. Because the vehicle was also flanked on both sides by cars parked in adjoining stalls, the officers had minimal space to move. Officer Yates did not see any drugs or drug paraphernalia when he shined his flashlight inside the passenger compartment. Inside were Johnson and a female passenger.

¶7 Officer Yates stood on the passenger side while Officer George stood adjacent to the driver's door. Yates sought to start a conversation with Johnson, who was in the driver's seat, and did so by asking, "Hey, is this Taylor's vehicle?" In fact, there was no "Taylor"; the ruse was intended to make Johnson feel more comfortable, in the hope that he would talk with the officer. Johnson appeared confused by the question, and Yates asked, again, whether the vehicle was "Taylor Smith's vehicle." In response, Johnson stated that the vehicle was his own and that he had recently purchased it.

¶8 Yates then asked for Johnson's name, whether Johnson had a driver's license, and if he would mind whether the officer looked at it. When Johnson stated that he had an identification card, both officers became suspicious that his license might be suspended. Officer Yates received the identification card from Johnson and used information from it to request a check of Johnson's warrant history and license status from police dispatch. Meanwhile, Officer George, who was leaning over the driver's side door, noticed a handgun placed between the driver's seat and the door.

¶9 George alerted Yates to the presence of the firearm, drew his own handgun, opened the driver's door and removed the weapon from Johnson's vehicle. Subsequently, Johnson was removed from the vehicle. Meanwhile, police dispatch informed the officers that Johnson's driver's license was suspended in the third degree, and that he had an outstanding arrest warrant and a felony conviction. The officers then informed Johnson that he was being detained but not placed under arrest and advised him of his Miranda rights.

¶10 Eventually, Johnson was charged with unlawful possession of a firearm in the first degree. Before trial, Johnson moved to suppress the evidence of the gun found in his possession, contending that it was found attendant to his unlawful seizure. After an evidentiary hearing, the trial court granted Johnson's motion. However, the judge did not make a determination as to whether Johnson was seized prior to the discovery and removal of the firearm, instead ruling that the encounter was a "social contact" and that "law enforcement had an insufficient basis to initiate a social contact." The trial court further acknowledged that granting the motion to suppress essentially terminated the State's case. The State appeals from the order granting Johnson's motion.

II

¶11 The State challenges the trial court's ruling that the police officers had an "insufficient basis" to initiate a social contact with Johnson. The State asserts, correctly, that there is no constitutional requirement for police officers to have articulable reasons for simply engaging in conversation with members of the public. Johnson does not dispute this but, rather, insists that the encounter became a seizure commenced without a lawful basis. He asks that we affirm the suppression order on this ground, as we may affirm a trial court decision on any basis supported by the evidence and the record. State v. Rafay, 167 Wash.2d 644, 655, 222 P.3d 86 (2009) (citing State v. Rohrich, 149 Wash.2d 647, 654, 71 P.3d 638 (2003) ). For its part, the State asserts that the encounter was a social contact, rather than a seizure, because none of the officers' actions or statements prior to the discovery of the firearm amounted to a show of authority that would cause a reasonable person to feel not free to leave the scene or to disregard the officers' requests. Johnson's analysis of the encounter is well-taken.

A

¶12 In a constitutional sense, the term "social contact" is meaningless. The term has been adopted by lawyers and judges to describe circumstances that do not amount to a seizure. But it never matters whether an encounter can be called a social contact. In seizure analysis, what matters is whether a person is seized. If not, the inquiry ends regardless of whether the encounter can be said to have been a social contact. If so, the requirements for a lawful seizure apply-again without concern for any claimed "social" purpose for the "contact."

¶13 To be sure, "social contact" discussions have entered our case law. In such discussions, a social contact is said to rest "someplace between an officer's saying 'hello' to a stranger on the street and, at the other end of the spectrum, an investigative detention (i.e., Terry stop)." State v. Harrington, 167 Wash.2d 656, 664, 222 P.3d 92 (2009) (citing Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) ). "The term 'social contact' does not suggest an investigative component." Harrington, 167 Wash.2d at 664, 222 P.3d 92.

¶14 Fortunately, seizure jurisprudence is well-developed. "Article I, section 7 does not forbid social contacts between police and citizens: '[A] police officer's conduct in engaging a defendant in conversation in a public place and asking for identification does not, alone, raise the encounter to an investigative detention.' " State v. Young, 135 Wash.2d 498, 511, 957 P.2d 681 (1998) (alteration in original) (quoting State v. Armenta, 134 Wash.2d 1, 11, 948 P.2d 1280 (1997) ). " '[N]ot every encounter between a police officer and a citizen is an intrusion requiring an objective justification.' " Young, 135 Wash.2d at 511, 957 P.2d 681 (quoting United States v. Mendenhall, 446 U.S. 544, 553, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980) ). Thus, "the police are permitted to engage persons in conversation and ask for identification even in the absence of an articulable suspicion of wrongdoing." Young, 135 Wash.2d at 511, 957 P.2d 681. Moreover, "[w]hile most citizens will respond to a police request, the fact that people do so, and do so without being told they are free not to respond, hardly eliminates the consensual nature of the response." Immigration & Naturalization Serv. v. Delgado, 466 U.S. 210, 216, 104 S.Ct. 1758, 80 L.Ed.2d 247 (1984).

¶15 A sufficient suspicion of wrongdoing, meanwhile, is required only to justify a seizure. As stated, a social contact is simply a term for an encounter that does not amount to a seizure. Thus, to determine whether such justification was lacking in Johnson's situation, we must first determine when Johnson was seized.

¶16 "Whether police have seized a person is a mixed question of law and fact." Harrington, 167 Wash.2d at 662, 222 P.3d 92. "The rule in Washington is that challenged findings entered after a suppression hearing that are supported by substantial evidence are binding, and, where the findings are unchallenged, they are verities on appeal." State v. O'Neill, 148 Wash.2d 564, 571, 62 P.3d 489 (2003).

Under article I, section 7, a person is seized " 'only when, by means of physical force or a show of authority,' " his or her freedom of movement is restrained and a reasonable person would not have believed he or she is (1) free to leave, given all the circumstances, State v. Young, 135 Wn.2d 498, 510, 957 P.2d 681 (1998) (quoting State v. Stroud, 30 Wn. App. 392, 394-95, 634 P.2d 316 (1981) and citing United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980) ), or (2) free to otherwise decline an officer's request and terminate the encounter, see Florida v. Bostick, 501 U.S. 429, 436, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991) ; [State v. ] Thorn, 129 Wn.2d [347,] 352[, 917 P.2d 108 (1996), overruled on other grounds by State v. O'Neill, 148 Wn.2d 564, 62 P.3d 489 ]. The standard is [ ] "a purely objective one, looking to the actions of the law enforcement officer." Young, 135 Wn.2d at 501 [957 P.2d 681] (emphasis added).

O'Neill, 148 Wash.2d at 574, 62 P.3d 489.

¶17 "[T]he 'reasonable person' test presupposes an innocent person." Bostick, 501 U.S. at 438, 111 S.Ct. 2382. "The Constitution does not require the utilization of an objective 'reasonable criminal' test." State v. Butler, 2 Wash. App. 2d 549, 556 n.1, 411 P.3d 393 (2018).

¶18 The defendant "bears the burden of proving a seizure occurred in violation of article I, section 7."

Harrington, 167 Wash.2d at 664, 222 P.3d 92 ; accord O'Neill, 148 Wash.2d at 574, 62 P.3d 489. As the United States Supreme Court has observed,

Our cases make it clear that a seizure does not occur simply because a police officer approaches an individual and asks a few questions. So long as a reasonable person would feel free "to disregard the police and go about his business," California v. Hodari D., 499 U.S. 621, 628[, 111 S.Ct. 1547, 113 L.Ed.2d 690] (1991), the encounter is consensual and no reasonable suspicion is required. The encounter will not trigger Fourth Amendment scrutiny unless it loses its consensual nature. The Court made precisely this point in Terry v. Ohio, 392 U.S. [at] 19, n.16 [88 S.Ct. 1868] (1968) : "Obviously, not all personal intercourse between policemen and citizens involves 'seizures' of persons. Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a 'seizure' has occurred."

Bostick, 501 U.S. at 434, 111 S.Ct. 2382.

¶19 Washington courts have adopted the Mendenhall test of a seizure to analyze a disturbance of a person's private affairs under our state constitution.

A person is "seized" within the meaning of the Fourth Amendment only when, by means of physical force or a show of authority, his freedom of movement is restrained. ... There is a "seizure" when, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.
State v. Stroud, 30 Wn. App. 392, 394-95, 634 P.2d 316 (1981) (footnote omitted) (citing United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980), review denied, 96 Wn.2d 1025 [1982 WL 226449] (1982) ; accord State v. Thorn, 129 Wn.2d 347, 351-52, 917 P.2d 108 (1996) ).
Washington search and seizure law stemming from Terry and proceeding through Mendenhall is well-established.

Young, 135 Wash.2d at 510, 957 P.2d 681 (alteration in original).

¶20 In Young, our Supreme Court confirmed that Mendenhall's approach to Fourth Amendment seizure analysis remains applicable to article I, section 7 seizure analysis.

"Examples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled. ... In the absence of some such evidence, otherwise inoffensive contact between a member of the public and the police cannot, as a matter of law, amount to a seizure of that person."

Young, 135 Wash.2d at 512, 957 P.2d 681 (alteration in original) (quoting Mendenhall, 446 U.S. at 554-55, 100 S.Ct. 1870 ). Our Supreme Court continues to apply the Mendenhall formulation to state constitutional seizure analysis, see, e.g., Harrington, 167 Wash.2d at 664, 222 P.3d 92 ; State v. Rankin, 151 Wash.2d 689, 695, 92 P.3d 202 (2004) ; O'Neill, 148 Wash.2d at 574, 62 P.3d 489, as do we. See, e.g., Butler, 2 Wash. App. 2d at 561, 411 P.3d 393 ; State v. Mote, 129 Wash. App. 276, 283, 120 P.3d 596 (2005).

¶21 Seizure analysis under the federal and state constitutions differs in only one pertinent respect. "In Young, Washington adopted the test for Fourth Amendment 'seizure' in United States v. Mendenhall, as the test for seizure analysis under Washington Constitution article I, section 7." Rankin, 151 Wash.2d at 710, 92 P.3d 202 (Ireland, J., dissenting) (citations omitted). However, after Mendenhall, the United States Supreme Court held that a seizure for purposes of the Fourth Amendment can occur only where the subject actually yields to an officer's physical force or show of authority. Hodari D., 499 U.S. at 626-28, 111 S.Ct. 1547.

¶22 Subsequently, our Supreme Court rejected the application of this test to article I, section 7 seizure analysis, instead applying a purely objective standard, Young, 135 Wash.2d at 509-11, 957 P.2d 681, which focuses not on whether the subject perceived that he or she was being ordered to restrict his or her movement but, rather, on whether the officer's words and actions would have conveyed that meaning to a reasonable person. Young, 135 Wash.2d at 506, 957 P.2d 681. Thus, cases applying Fourth Amendment seizure analysis continue to be applicable to an article I, section 7 analysis, so long as they do not involve an application of the Hodari D."subjectivity" test. ¶23 Several Washington cases applying this seizure analysis guide our thinking. Johnson was the occupant of an automobile parked in a public place. As such, he was constitutionally indistinguishable from a pedestrian. O'Neill, 148 Wash.2d at 579, 62 P.3d 489.

¶24 In Thorn, 129 Wash.2d 347, 917 P.2d 108, a suspect in a parked vehicle in an otherwise empty lot was found not to have been seized when asked an accusatory question by a lone police officer. As described therein,

While on routine patrol in a marked patrol car shortly after midnight, Spokane Police Officer K. Peden observed three people seated in a car that was legally parked in the parking lot of Friendship Park in suburban Spokane. The officer also observed a flicker of light emanate from within the parked car and believed that the light was a flame being used to ignite a drug pipe ....
Officer Peden stopped, exited the patrol car, and approached the parked car on foot. The officer asked the driver of the parked car, "Where is the pipe?" .... In response to the question, the driver, James Thorn, removed a pipe from his coat pocket and handed it to Officer Peden.

Thorn, 129 Wash.2d at 349, 917 P.2d 108. Psilocybin mushrooms, a controlled substance, were discovered in a subsequent search incident to Thorn's arrest. Thorn, 129 Wash.2d at 349, 917 P.2d 108.

¶25 On appeal, Thorn claimed that he was illegally seized when the officer asked, "Where is the pipe?" The Supreme Court disagreed, citing Bostick and Mendenhall for the proposition that an officer does not seize a person merely by striking up a conversation or asking questions. Thorn, 129 Wash.2d at 352, 917 P.2d 108.

¶26 The court noted that the required analytical approach was to consider the totality of the circumstances. Thorn, 129 Wash.2d at 352-53, 917 P.2d 108. The court concluded that the posing of the question, in the circumstances described, did not "create[ ] a coercive environment" such that Thorn was seized. Thorn, 129 Wash.2d at 354, 917 P.2d 108.

¶27 However, officers need not create a complete obstruction of an individual's movements in order for the encounter to become a seizure. The test is whether a reasonable person faced with similar circumstances would feel free to leave or otherwise terminate the encounter. In this regard, an opinion from Division Two of our court, State v. Young, 167 Wash. App. 922, 275 P.3d 1150 (2012), is informative. In that case, two police officers exited separate patrol vehicles and followed Young into an alley behind a building, believing that she had been acting suspiciously. Young, 167 Wash. App. at 925-26, 275 P.3d 1150. While Young was leaning against a wall, the officers approached her, stood five feet away from her at 45-degree angles, and asked for the last four digits of her Social Security number. Young, 167 Wash. App. at 926, 928, 275 P.3d 1150. Using this information, the officers learned that Young had an outstanding arrest warrant. They then arrested her and, in a search incident to the arrest, found methamphetamines. Young, 167 Wash. App. at 926-27, 275 P.3d 1150.

¶28 The trial court denied Young's suppression motion, reasoning that she had been free to leave and, thus, the encounter was not a seizure. Young, 167 Wash. App. at 927-28, 275 P.3d 1150. Division Two reversed, holding that the contact became a seizure and not a consensual encounter, because "[a]ny reasonable person in Young's position, with her back to a wall and police officers on either side of her, would not have felt free to walk away without first answering the officers' questions." Young, 167 Wash. App. at 931, 275 P.3d 1150.

B

¶29 We now analyze the circumstances presented herein in light of the foregoing discussion. Johnson was seated in a parked vehicle with a passenger at 2:00 in the morning. Because a grass median was in front of the vehicle, the vehicle could only have exited the stall by backing out. Two police officers approached Johnson's vehicle, with one standing on each side of the vehicle adjacent to the vehicle doors. Cars were parked in each of the adjoining spaces, limiting the space available for movement. The two uniformed officers approached the vehicle less than two minutes after it had been parked. The officers shined flashlights inside the passenger compartment. In the substantially full parking lot, with vehicles parked on either side of Johnson's vehicle, there was minimal space for either officer to move. Because the officers were standing adjacent to the vehicle's doors, neither Johnson nor his passenger would have been able to open the doors and walk from the vehicle without the officers moving or giving way. The testimony did not indicate whether any other people were present in the lot.

¶30 Officer Yates asked Johnson whether the vehicle belonged to "Taylor." When Johnson appeared confused by this question, the officer repeated the question, inquiring whether the vehicle belonged to "Taylor Smith." Johnson then stated that the vehicle was his and that he had recently purchased it. In response Officer Yates asked Johnson for his name. He then asked Johnson to prove his identity, by requesting his driver's license.

¶31 Although asking the question, "Is this Taylor's car?" was a ruse made for the sake of initiating a conversation, its effect on a reasonable person in these circumstances would be to create the impression that the police were conducting an ongoing investigation concerning the vehicle. Indeed, Johnson manifested confusion as a result of the question, likely because he had no reason to believe that the question was not sincere. The repetition of the question underscored its apparent sincerity. The further inquiries into Johnson's name, whether Johnson had a driver's license, and whether Johnson would prove his identity by presenting his identification document to Officer Yates further advanced the impression that a police investigation was ongoing and that Johnson was a suspect.

¶32 It is so that the police do not violate either the state or federal constitutions simply by lying to potential suspects or witnesses. Lewis v. United States, 385 U.S. 206, 208-09, 87 S.Ct. 424, 17 L.Ed.2d 312 (1966) ; State v. Hashman, 46 Wash. App. 211, 216, 729 P.2d 651 (1986). Indeed, courts have repeatedly accommodated the legitimate law enforcement interest in employing subterfuge or untruths. State v. Hastings, 119 Wash.2d 229, 233, 830 P.2d 658 (1992) ; accord State v. Johnson, 104 Wash. App. 489, 503, 17 P.3d 3 (2001). However, when the police do choose to lie, they must accept both the benefits and the detriments of that choice.

¶33 We have previously noted that the police are not required to distrust ordinary citizens, and " '[c]ourts are not required to sever the relationships that citizens and local police forces have forged to protect their communities from crime.' " State v. Lee, 147 Wash. App. 912, 919, 199 P.3d 445 (2008) (alteration in original) (quoting United States v. Christmas, 222 F.3d 141, 145 (4th Cir. 2000) ). A corollary to this principle is that ordinary citizens are not required to distrust the police, and a reasonable innocent person is entitled to believe that he or she is being dealt with honestly by law enforcement. In the context of constitutional seizure jurisprudence, one consequence of a police lie is plain: whether a person has been seized is a purely objective inquiry; an objective inquiry focuses on the perceptions of a reasonable person; a reasonable person is an innocent person; and reasonable innocent people can be assumed to believe that which the police tell them.

¶34 Taken in their totality, the circumstances existing at the moment Officer Yates requested possession of Johnson's identification document would have caused a reasonable innocent person to believe that ignoring the officer's requests, terminating the encounter, or leaving the scene were not viable options. The sudden presence of two uniformed officers so soon after the vehicle had parked, the shining of flashlights into the vehicle, the question, repeated, as to whether the vehicle belonged to Taylor Smith, and the request for the driver's name and proof of his identity would lead a reasonable innocent person to believe that the vehicle, and by extension its driver, was the subject of an ongoing criminal investigation.

¶35 Johnson was not at that time in the presence of other members of the public-the parking lot, although filled with vehicles, was not a scene of activity at 2:00 in the morning. The presence of two officers flanking the vehicle in a tight spot affording limited movement meant that neither Johnson nor his passenger would have been able to open a vehicle door and walk away from the vehicle without either making physical contact with an officer or requiring the officer to give way. Johnson also could not drive forward due to the berm. Neither could he move his vehicle in reverse without risking his car making contact with one or both of the officers. Indeed, such vehicle movement would likely seem-to a reasonable innocent person under the circumstances-to constitute an aggressive move of a type that would promote an aggressive response from the officers. The shining of flashlights by both officers, while possibly a benign practice by itself, would further a reasonable innocent person's impression that the police were conducting an active investigation centering on the vehicle. Finally, in addition to the ruse, the request for Johnson's name and for proof of his identity would indicate to a reasonable innocent person that the officers were unwilling to take that person at his word-either as to his statement concerning the vehicle's ownership or as to his identity.

¶36 A totality of the circumstances analysis is a cumulative analysis, not a "divide-and-conquer" analysis. See United States v. Arvizu, 534 U.S. 266, 274, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002) ; State v. Marcum, 149 Wash. App. 894, 907, 205 P.3d 969 (2009). Thus, the State's reliance on cases in which a single circumstance was deemed insufficient to constitute a seizure-be it the use of a flashlight in O'Neill, 148 Wash.2d at 578, 62 P.3d 489, the questioning of a suspect in a parked car in Mote, 129 Wash. App. at 289, 120 P.3d 596, or the request for a suspect's identification in Armenta, 134 Wash.2d at 11, 948 P.2d 1280 -is uncompelling.

¶37 Under the totality of the circumstances then existing, the request for proof of Johnson's identity became the tipping point at which the weight of the circumstances transformed a simple encounter into a seizure. At that stage of the encounter, a reasonable innocent person in Johnson's position would not have felt free to leave the scene, to disregard the officer's requests, to ignore the officers, or to otherwise terminate the encounter. See Young, 167 Wash. App. at 930-31, 275 P.3d 1150. Johnson was seized at that time.

III

¶38 Having determined that Johnson was seized and when he was seized, the next question is whether the seizure of Johnson was lawful. Johnson asserts that it was unlawful. We agree.

¶39 Warrantless seizures are presumed to be unlawful and the State bears the burden of proving that a seizure falls within an exception to the warrant requirement. Z.U.E., 183 Wash.2d at 617, 352 P.3d 796. The authority for a warrantless investigative detention is derived from Terry v. Ohio, 392 U.S. at 21, 88 S.Ct. 1868. State v. Kennedy, 107 Wash.2d 1, 5-6, 726 P.2d 445 (1986). A Terry stop is justified if an officer can articulate a reasonable suspicion that the person stopped has been or is about to be involved in criminal activity. State v. Acrey, 148 Wash.2d 738, 746-47, 64 P.3d 594 (2003). A reasonable suspicion must "be grounded in 'specific and articulable facts.' " Z.U.E., 183 Wash.2d at 617, 352 P.3d 796 (quoting Terry, 392 U.S. at 21, 88 S.Ct. 1868 ). An investigative detention cannot be predicated upon speculation or "mere hunches." State v. Doughty, 170 Wash.2d 57, 63, 239 P.3d 573 (2010) ; accord State v. Larson, 93 Wash.2d 638, 643, 611 P.2d 771 (1980) ; see also State v. Fuentes, 183 Wash.2d 149, 161, 352 P.3d 152 (2015) ("An officer's hunch does not justify a stop."); State v. Gatewood, 163 Wash.2d 534, 542, 182 P.3d 426 (2008) ("Officers seized Gatewood to conduct a speculative criminal investigation. Our constitution protects against such warrantless seizures and requires more for a Terry stop."). Furthermore, under article I, section 7, the facts available to an officer must connect the seized person to the particular crime that the officer seeks to investigate. Z.U.E., 183 Wash.2d at 618, 352 P.3d 796.

¶40 A suspicion is reasonable when it is based upon the "substantial possibility that criminal conduct has occurred or is about to occur." Kennedy, 107 Wash.2d at 6, 726 P.2d 445. A reasonable suspicion analysis is based upon the totality of the circumstances, with officers being allowed to make inferences from known facts, drawing on their experience and specialized training. Arvizu, 534 U.S. at 273, 122 S.Ct. 744 ; State v. Glover, 116 Wash.2d 509, 514, 806 P.2d 760 (1991). "[T]he determination of reasonable suspicion must be based on commonsense judgments and inferences about human behavior." Illinois v. Wardlow, 528 U.S. 119, 125, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000) ; accord Lee, 147 Wash. App. at 917, 199 P.3d 445. Factors courts will look to in a totality of the circumstances analysis include, among others, the detaining officer's experience and training, the location of the investigatory detention, and the suspect's conduct. Glover, 116 Wash.2d at 514, 806 P.2d 760.

¶41 Several opinions illustrate circumstances which were, in their totality, insufficient to support reasonable suspicion. In State v. Richardson, 64 Wash. App. 693, 694, 825 P.2d 754 (1992), an officer was on patrol in an area known for high drug activity. He observed one individual who, over a period of several hours, acted in a manner suggestive of being a drug runner. This person absented himself whenever the officer approached. Richardson, 64 Wash. App. at 694, 825 P.2d 754. When the officer later saw Richardson walking with the suspected drug runner, he pulled up next to them and exited his patrol car. Richardson, 64 Wash. App. at 694-95, 825 P.2d 754. In short order, he asked the two men if he could talk to them, had them empty their pockets, and had them place their hands, along with whatever was in their pockets, on his patrol car. Richardson, 64 Wash. App. at 695, 825 P.2d 754. The officer subsequently searched Richardson's pockets and found cocaine. Richardson, 64 Wash. App. at 695, 825 P.2d 754.

¶42 The Court of Appeals held that the men were seized when the officer had them empty their pockets and place their hands on his vehicle. Richardson, 64 Wash. App. at 696, 825 P.2d 754. The court then analyzed whether reasonable suspicion existed to justify the seizure. The court observed that, based on existing case law, neither presence in a high crime area nor mere proximity to others independently suspected of criminal activity were sufficient to constitute reasonable suspicion. Richardson, 64 Wash. App. at 697, 825 P.2d 754. It then noted that these were the only things known to the officer at the time of the seizure. The officer had not overheard any conversation or seen any suspicious activity taking place between the men. Richardson, 64 Wash. App. at 697, 825 P.2d 754. The court concluded that the officer's suspicion was not reasonable and the seizure was unlawful. Richardson, 64 Wash. App. at 697, 825 P.2d 754.

¶43 Another opinion, State v. Doughty, 170 Wash.2d 57, 239 P.3d 573, is similarly informative. Therein, police stopped Doughty's vehicle after he was observed entering and exiting a house within a two-minute period around 3:20 a.m. Doughty, 170 Wash.2d at 59-60, 239 P.3d 573. The house was suspected of being a drug house based on an informant's tip and on complaints from neighbors of short-stay traffic. Doughty, 170 Wash.2d at 60, 239 P.3d 573. After stopping Doughty, a records check revealed to the officer that his driver's license was suspended. He was arrested. Doughty, 170 Wash.2d at 60, 239 P.3d 573. A search incident to this arrest revealed him to be in possession of methamphetamine.

Doughty, 170 Wash.2d at 60, 239 P.3d 573.

¶44 Our Supreme Court concluded that the officer's decision to detain Doughty was based on the officer's "incomplete" observations. Doughty, 170 Wash.2d at 64, 239 P.3d 573. In holding that these observations were insufficient to justify seizing Doughty, the court reasoned,

[P]olice never saw any of Doughty's interactions at the house. ... The two-minute length of time Doughty spent at the house-albeit a suspected drug house-and the time of day do not justify the police's intrusion into his private affairs.

Doughty, 170 Wash.2d at 64, 239 P.3d 573.

¶45 In the wake of Doughty, the Court of Appeals applied that opinion's reasoning to an analogous set of facts in State v. Diluzio, 162 Wash. App. 585, 254 P.3d 218 (2011). There, an officer was on patrol in the late evening in a high crime area known for prostitution. Diluzio, 162 Wash. App. at 589, 254 P.3d 218. No bus stops existed in the area and no businesses were open at that hour, nor were any residences nearby. Diluzio, 162 Wash. App. at 589, 593, 254 P.3d 218. The officer saw Diluzio's vehicle stopping on the side of the road, where Diluzio, still in his vehicle, spoke with a female pedestrian.

Diluzio, 162 Wash. App. at 588-89, 254 P.3d 218. The pedestrian then entered the vehicle. Diluzio, 162 Wash. App. at 589, 254 P.3d 218.

¶46 Subsequently, the officer stopped the vehicle. After asking Diluzio for his identification, he learned of an outstanding warrant for Diluzio's arrest. The officer arrested Diluzio and a search incident to this arrest yielded methamphetamine and heroin. Diluzio, 162 Wash. App. at 589, 254 P.3d 218. In its decision, the appellate court noted that the officer only observed Diluzio talking with a woman before allowing her into his vehicle-the officer did not act on any tip, overhear any conversation, or see any money change hands. Diluzio, 162 Wash. App. at 593, 254 P.3d 218. The court concluded,

Even with the officer's 13 years of experience, the location of the stop, and the lack of open businesses or residences, the totality of the circumstances do not support a conclusion of a reasonable suspicion of criminal activity.

Diluzio, 162 Wash. App. at 593, 254 P.3d 218.

¶47 The period of observation before Officers Yates and George chose to approach Johnson was less than two minutes. In those two minutes, the following was known to the officers: the immediate area-the Rodeo Inn parking lot-was in a high crime area and Johnson parked and remained in his vehicle for over one minute. In the officers' experience, they testified, people who remained in parked vehicles could be using illegal drugs. This is a generalization that amounts to nothing more than a hunch. When the officers approached the vehicle and initiated a conversation with Johnson, they saw him seated with a female passenger. Neither officer observed any signs of drug use. Johnson was cooperative with Officer Yates and answered his questions. Beyond the aforementioned hunch, the officers were aware of nothing that constituted a reasonable, articulable suspicion of potential criminal activity.

¶48 Thus, the seizure was unlawful. The trial court did not err in granting Johnson's motion to suppress evidence of the subsequently discovered firearm.

¶49 Affirmed.

We concur:

Verellen, J.

Appelwick, C.J.

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

      Of course, an encounter that begins as other than a seizure may become a seizure. When engaged in a totality of the circumstances analysis, a tipping point may be reached whereby the cumulative weight of the circumstances leads from one conclusion (no seizure) to the other (seizure). See Harrington, 167 Wash.2d at 660, 222 P.3d 92.

      "In a challenge to the validity of a Terry stop, article 1, section 7 generally tracks the Fourth Amendment analysis." State v. Z.U.E., 183 Wash.2d 610, 617, 352 P.3d 796 (2015).

      Thorn was decided on Fourth Amendment grounds. It did not, however, involve an application of the Hodari D."subjectivity" test and, therefore, retains its validity for purposes of both state and federal constitutional analysis. Thorn, 129 Wash.2d at 351-52, 917 P.2d 108.

      Johnson, citing United States v. Smith, 794 F.3d 681 (7th Cir. 2015), also argues that we should consider racial dynamics as part of the totality of the circumstances, because Johnson, as a black man in a high-crime area, would not feel free to ignore the two white officers standing next to his vehicle. The court in Smith ultimately found that a seizure existed based on an objective reasonable person analysis without accounting for the defendant's race. Smith, 794 F.3d at 687-88. The standard utilized to determine whether a seizure took place is an objective one, based on a reasonable innocent person's perceptions-not the subjective impressions of the defendant. While we would not assert that race could never be a factor, here it is clear that the officers had no idea as to Johnson's race when they made the decision to initiate the encounter.


source: Caselaw Access Project

author: Schindler, J.

license: Public Domain

text:
    The STATE of Washington, Respondent, v. Tristan James MELLAND, Appellant.
    No. 76617-1-I
    Court of Appeals of Washington, Division 1.
    FILED: May 6, 2019
    Richard Wayne Lechich, Gregory Charles Link, Washington Appellate Project, 1511 3rd Ave. Ste. 610, Seattle, WA, 98101-1683, for Appellant.
    Prosecuting Attorney King County, King Co. Pros./App. Unit Supervisor, Ian Ith, King County Prosecuting Attorney's Office, 516 3rd Ave., Seattle, WA, 98104-2385
    PUBLISHED OPINION
   Schindler, J.

¶1 The State charged Tristan James Melland with assault in the second degree of D.J. and felony violation of a court order prohibiting contact with D.J. Melland seeks reversal of the jury convictions on assault in the second degree and the lesser included offense of misdemeanor violation of a no-contact order. Melland contends sufficient evidence does not support the jury finding he committed the charged crimes. In the alternative, Melland seeks reversal of the assault in the second degree conviction, arguing sufficient evidence does not support the jury finding he recklessly inflicted substantial bodily harm. Melland seeks dismissal without prejudice of the lesser included misdemeanor violation of a no-contact order conviction on the grounds that the charging document did not include an essential element of the crime. We conclude sufficient evidence supports the jury finding Melland committed the crimes charged. Because the charging document contains the essential elements of misdemeanor violation of a no-contact order, we affirm the jury conviction on the lesser included offense. Because we conclude sufficient evidence does not support the jury finding Melland recklessly inflicted substantial bodily harm, we reverse the assault in the second degree conviction.

FACTS

¶2 In 2016, 29-year-old Tristan James Melland and 31-year-old D.J. lived together in her apartment in Queen Anne. D.J. worked as a bartender.

¶3 On March 31, 2016, D.J. experienced severe vomiting and nausea after she stopped drinking alcohol. The Virginia Mason Hospital records state, " '[R]elationship stressors led to excessive alcohol intake.' " A Virginia Mason doctor diagnosed D.J. with alcohol withdrawal and prescribed Librium and potassium chloride.

¶4 On April 4, 2016, a Seattle Municipal Court (SMC) judge in City of Seattle v. Tristan J. Melland, case no. 614080, entered a domestic violence no-contact order to protect D.J. Melland was present and he signed and acknowledged receipt of a copy of the no-contact order. The no-contact order expired on April 4, 2018.

¶5 The no-contact order prohibited Melland from having any contact with D.J. "directly" or "indirectly." The order states, in pertinent part:

A. do not cause, attempt, or threaten to cause bodily injury to, assault, sexually assault, harass, stalk, or keep under surveillance the protected person.
B. do not contact the protected person directly, indirectly, in person or through others, by phone, mail, electronic or any other means, except for mailing or service of process of court documents through a third party, or contact by the defendant's lawyers.
C. do not knowingly enter, remain, or come within 500 [feet] ... of the protected person's residence, school, workplace, [or] ... anywhere protected party is.

The order warns Melland, "You have the sole responsibility to avoid or refrain from violating the order's provisions," and violation of the terms of the no-contact order "is a criminal offense."

¶6 On June 11, 2016, Seattle Police Officer Kevin Stewart responded to a 911 call that reported a "domestic violence assault incident" on June 10 "and possible violation of a no-contact order." When Officer Stewart arrived at the apartment, D.J. was "visibly shaking" and "crying," "complaining of an injury," and holding her hand. Officer Stewart noticed her right pinky finger and ring finger were "discolored and bruised." Officer Stewart took photographs of her right hand and both hands side-by-side. Officer Stewart searched the police database and verified there was a valid no-contact order in effect that prohibited Melland from having any contact with D.J.

¶7 On June 15, 2016, the State charged Melland with domestic violence felony violation of a no-contact order in violation of RCW 26.50.110(1) and (4) and interfering with domestic violence reporting in violation of RCW 9A.36.150. The information alleged Melland committed the crimes against a family or household member.

¶8 On June 26, D.J. experienced severe nausea and abdominal pain. D.J. told the Virginia Mason Hospital emergency room physician Dr. David Frank that she " 'managed to stay away from alcohol until two weeks ago when, again, relationship stressors (boyfriend's trial for domestic dispute) led' " her to " 'engage[ ] in a one-week long binge where she was drinking a fifth [of a gallon] of bourbon per day as a way of coping with recent stressors in her life.' " Dr. Frank noted D.J. " 'lives in Queen Anne with boyfriend of six years who is abusive' " but " 'is no longer living with her.' " Dr. Frank diagnosed alcohol withdrawal and admitted D.J. to the hospital. Dr. Frank ordered an X-ray of her right hand. X-rays showed a " 'nondisplaced fracture' " of her right pinky finger.

¶9 On June 29, Detective Jeffrey Page interviewed D.J. at Virginia Mason. Detective Page took photographs of her right hand "splinted and wrapped" in a bandage and "unwrapped" to show the "bruising to her right pinky finger."

¶10 A Virginia Mason social worker met with D.J. before her discharge from the hospital on July 1 to discuss "concerns of domestic violence." D.J. told the social worker that " 'following a fight with her boyfriend about a week or so ago, she was feeling lonely and consumed significantly more alcohol than usual.' "

¶11 On July 14, 2016, Virginia Mason emergency room physician Dr. Huma Memon admitted D.J. for alcohol withdrawal. D.J. told Dr. Memon she drank " 'about a fifth-and-a-half of bourbon the night before.' "

¶12 Before her discharge the next day, social worker Janelle Moore met with D.J. because doctors "had raised the concern that there was a history of domestic violence, and they wanted to make sure that the patient had a safe place to go." D.J. expressed "concern about her ex-boyfriend with DV[ ] history, and a concern about her safety." D.J. told Moore her "ex-boyfriend was violating a protection order that prevents him from being near her." D.J. said she planned to "get her things from her apartment, which she indicated was her own private lease but where [Melland] had also lived and had a key." D.J. told Moore her "lease was up at the end of July and she wouldn't be returning there."

¶13 On November 10, 2016, the State filed an amended information, charging Melland with domestic violence assault in the second degree in violation of RCW 9A.36.021(1)(a). The amended information alleged that "on or about June 10, 2016," Melland "did intentionally assault another and thereby recklessly inflict substantial bodily harm upon [D.J.]" in violation of RCW 9A.36.021(1)(a).

¶14 The court addressed motions in limine before trial. The court ruled the statements D.J. made to the Virginia Mason health care providers for purposes of medical diagnosis or treatment were admissible under ER 803(a)(4). The court granted the defense motion to redact other statements in the medical records, such as references to Melland being in "jail." The court also granted the defense motion to redact the findings of fact in the certified copy of the April 4, 2016 SMC no-contact order.

¶15 The prosecutor conceded the 911 call and the statements D.J. made to the police were not admissible if she did not testify. The prosecutor told the court that according to the victim advocate, D.J. "did not indicate whether she was going to show up or not," and the victim advocate "expressed low confidence to me that [D.J.] would show up. So at this point, unless something changes, it's my understanding she's not going to show up." However, the prosecutor argued that if D.J. did testify, the 911 call and the statements D.J. made to the police would be admissible to impeach her.

¶16 In opening statement, the prosecutor told the jury, "I don't know if [D.J.]'s going to testify and if she does, I don't know what she's going to say; but I want to talk about what I do know the evidence will show and what you can expect to see in this case." The prosecutor asserted Melland committed the charged crimes of interfering with domestic violence reporting, felony violation a no-contact order, and assault in the second degree.

¶17 The prosecutor displayed the redacted April 4, 2016 no-contact order to the jury:

You can see that the listed defendant is Tristan Melland, the defendant here today. You can see that the no-contact order expires on April 4, 2018. We all know we haven't reached that date yet, so it's still applicable.
We know that it protects [D.J.]; it lists her by name, birth date, gender, and race. We know that it identifies the defendant by name, gender, birth date, and race. But it also describes at the bottom of this page, what the defendant is not allowed to do. Let's zoom in on that.
There's a number of very important provisions that are at issue in this case, and this order prohibits the defendant from doing a number of very harmful things, including assaulting [D.J.]. Right in there on number (A), "Do not cause or attempt to threaten to cause bodily injury through assault," so on and so forth.

¶18 The prosecutor told the jury the evidence showed Melland

broke her finger when he grabbed her right hand so hard, squeezed, and twisted it that the bone broke; it was a redisplayed [sic] fracture. The abuse th[at] [D.J.] suffered in this relationship with Mr. Melland was a trigger. It was a trigger for her alcoholism.

¶19 In opening statement, the defense conceded, "Yes, there is a no-contact order, and, yes, there's an injury to [D.J.]'s finger." But defense counsel asserted the State could not prove beyond a reasonable doubt that Melland committed "the specific charges that they have filed against him."

¶20 Officer Stewart, Detective Page, and Virginia Mason health care providers Dr. Frank, Dr. Memon, and social worker Moore testified at the trial. The court admitted into evidence a redacted certified copy of the April 4, 2016 SMC domestic violence no-contact order, a certified copy of Melland's driver's license, and a number of photographs of D.J.'s hands and the bruising and swelling to her right pinky and ring fingers. Neither D.J. nor Melland testified.

¶21 Officer Stewart and Detective Page testified about the steps taken to verify the April 4, 2016 SMC domestic violence no-contact order that prohibited Melland from contacting D.J. was in effect until April 4, 2018. Detective Page confirmed there were no other no-contact orders in effect that pertained to D.J. Detective Page testified the name and date of birth on the no-contact order matched the name and date of birth on Melland's driver's license.

¶22 Dr. Frank testified that D.J. said, " 'My boyfriend broke my finger.' " Dr. Frank "could tell that her finger looked injured because it was pretty tender and painful. It had some bruising and was somewhat swollen." Dr. Frank testified that D.J. told him, " 'During domestic dispute with boyfriend, he grabbed the[ ] phone from patient's hand which hurt her finger.' "

¶23 Dr. Memon testified that D.J. said her " 'boyfriend of six years has abused her in the past and is responsible for breaking her finger.' " Dr. Memon noted " '[d]omestic abuse' " and that " '[c]ounseling was provided regarding area resources for victims of domestic violence and that is able to contact any of these resources for help.' "

¶24 At the conclusion of the evidence, the court dismissed the charge of interfering with domestic violence reporting. The court ruled, "[T]here is not evidence upon which a reasonable juror could properly rely to conclude that the phone grab was an interference with reporting ... and there is not evidence that there was an attempt or intent to call for any kind of help at that point."

¶25 The court instructed the jury on assault in the second degree and felony violation of a no-contact order. At the request of the defense and without objection from the State, the court also instructed the jury on the lesser included offense of misdemeanor violation of a no-contact order.

¶26 The assault in the second degree to-convict jury instruction states, in pertinent part:

To convict the defendant of the crime of assault in the second degree, as charged in Count THREE, each of the following elements of the crime must be proved beyond a reasonable doubt:
(1) That on or about June 10, 2016, the defendant intentionally assaulted [D.J.];
(2) That the defendant thereby recklessly inflicted substantial bodily harm on [D.J.].

¶27 The felony violation of a no-contact order to-convict jury instruction states, in pertinent part:

To convict the defendant of the crime of felony violation of a court order as charged in Count ONE, each of the following five elements of the crime must be proved beyond a reasonable doubt:
(1) That on or about June 10, 2016, there existed a no-contact order applicable to the defendant;
(2) That the defendant knew of the existence of this order;
(3) That on or about said date, the defendant knowingly violated a provision of this order;
(4) That the defendant's conduct was an assault that did not amount to assault in the first or second degree.

¶28 The to-convict jury instruction on the lesser included offense of misdemeanor violation of a no-contact order states, in pertinent part:

To convict the defendant of the crime of violation of a court order, each of the following four elements of the crime must be proved beyond a reasonable doubt:
(1) That on June 10, 2016, there existed a no-contact order applicable to the defendant;
(2) That the defendant knew of the existence of this order;
(3) That on said date, the defendant knowingly violated a restraint provision of this order prohibiting contact with the protected party.

¶29 The prosecutor addressed the jury instructions in closing argument. The prosecutor told the jury that if the jury found Melland guilty of assault in the second degree, it should find Melland not guilty of felony violation of a no-contact order and guilty of the lesser included offense of misdemeanor violation of the no-contact order.

I'm asking you to find the defendant not guilty of felony violation of a no-contact order because if you have found him guilty of Assault 2, I cannot then prove felony violation because one of the elements is that the assault in the felony violation is not Assault 2. So I'm asking you to find the defendant guilty of Assault 2, not guilty of felony violation of a no-contact order; and then I'm also asking you to find the defendant guilty of the lesser included on Count 1, which is nonfelony violation of a no-contact order because he violated the order that prohibited him from having any contact with [D.J.] the second he walked in the door in her building on June 10, 2016.

¶30 The prosecutor argued the statements D.J. made to the Virginia Mason health care providers established Melland committed assault in the second degree. "So [D.J.] described the incident on June 10 as an altercation with her boyfriend. This is what she said to the hospital staff, 'He ripped the phone out of her hand so hard that it broke her finger.' " The prosecutor argued Melland recklessly inflicted substantial bodily harm by "twist[ing]" and "turn[ing]" D.J.'s hand and finger "so hard that it breaks":

And just to go into Assault 2. What does recklessly inflict mean? It means he knows of and disregards the substantial risk of his conduct. You're going to grab someone's hand really hard and twist it and turned it so hard that it breaks, of course, you are disregarding a substantial risk of your conduct, which is a gross deviation from conduct of a reasonable person. A reasonable person does not go up to someone and twist her fingers so hard that it breaks. That's what recklessly inflict means. Recklessly inflicts substantial bodily harm. What's substantial bodily harm? It defines it in your jury instruction. It's a fracture. You break a bone, that's substantial bodily harm.

The prosecutor argued the certified copy of the SMC no-contact order established Melland knew of the existence of the no-contact order and on June 10, 2016, he knowingly violated the order by having contact with D.J.

¶31 Defense counsel argued the State did not prove that Melland violated the no-contact order or that he "is responsible for breaking her finger."

[T]here was a no-contact order put in place between two individuals that you have not heard from throughout this trial, [D.J.] and Tristan Melland. You have no idea why that no-contact order came to be.
... You haven't heard anything about the nature of Mr. Melland and [D.J.]'s relationship.
You don't know - and you have a jury instruction explaining what domestic violence could be, what a domestic relationship is - you don't know whether Mr. Melland and [D.J.] have ever lived together. You don't know what the nature of their relationship, if it was dating, if they lived together as roommates at some point in that past, whether they're family members. There could be a wide variety of things.

¶32 In rebuttal, the prosecutor argued the evidence established Melland committed the crimes of assault in the second degree and violation of a no-contact order:

[D.J.'s] finger was broken by the defendant on June 10, she called 911, the next day a police officer responded and saw her freshly broken finger, so we know it was already injured on June 11. It was fresh, so we know it was probably on June 10 when the first 911 call came. We know it was on Queen Anne because that's where the 911 calls came from, and that's where the police officer responded to, [D.J.]'s apartment. We know that [D.J.] was living there with a boyfriend of six years, and this is the same boyfriend where she referred in the medical records as the one that she was protected from in the no-contact order.

The prosecutor argued the statements D.J. made to the Virginia Mason health care providers "quite clearly" identify Melland as "the person who's not supposed to contact me because of the no-contact order."

Now, defense also said you haven't heard evidence of where, when, why, how, all that kind of stuff, unnamed boyfriend. Well, [D.J.] doesn't need to name her boyfriend to hospital staff. She identified him quite clearly; this is the person who's not supposed to contact me because of the no-contact order. We already went over that. She's talking about Mr. Melland.

The prosecutor reiterated the assault "happened when he grabbed her fingers so hard, twisted and grabbed and squeezed it that it broke."

Now, how did this happen? Well, you do know how it happened actually. It happened when he grabbed her fingers so hard, twisted and grabbed and squeezed it that it broke, that's how; but the thing is, how it happened is not one of the elements that I bear [the] burden of proving beyond a reasonable doubt.

¶33 The jury found Melland guilty of assault in the second degree and the lesser included offense of misdemeanor violation of the no-contact order. By special verdict, the jury found D.J. and Melland were "members of the same family or household prior to or at the time" Melland committed the crimes.

ANALYSIS

Sufficiency of the Evidence

¶34 Melland claims sufficient evidence does not support the jury finding he committed assault in the second degree or misdemeanor violation of a no-contact order. In the alternative, Melland contends the State did not prove beyond a reasonable doubt the essential element of assault in the second degree-that he recklessly inflicted substantial bodily harm.

¶35 The State has the burden to prove every element of the crime charged beyond a reasonable doubt. U.S. CONST. amend. XIV ; WASH. CONST. art. I, § 3 ; In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L.Ed.2d 368 (1970). "[T]he Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." Winship, 397 U.S. at 364, 90 S.Ct. 1068 : State v. Rich, 184 Wash.2d 897, 903, 365 P.3d 746 (2016). Sufficiency of the evidence is a question of constitutional law that we review de novo. Rich, 184 Wash.2d at 903, 365 P.3d 746.

¶36 Evidence is sufficient to support a conviction if any rational trier of fact could have found the essential elements of the crime charged beyond a reasonable doubt. State v. Johnson, 188 Wash.2d 742, 750-51, 399 P.3d 507 (2017). A challenge to the sufficiency of the evidence admits the truth of the State's evidence. State v. Witherspoon, 180 Wash.2d 875, 883, 329 P.3d 888 (2014). "[A]ll reasonable inferences from the evidence must be drawn in favor of the State and interpreted most strongly against the defendant." State v. Salinas, 119 Wash.2d 192, 201, 829 P.2d 1068 (1992) ; Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L.Ed.2d 560 (1979). In determining sufficiency, circumstantial evidence is no less reliable than direct evidence. State v. Delmarter, 94 Wash.2d 634, 638, 618 P.2d 99 (1980). We defer to the trier of fact on "issues of witness credibility." Witherspoon, 180 Wash.2d at 883, 329 P.3d 888.

Evidence Melland Committed the Charged Crimes

¶37 Viewing the evidence and all reasonable inferences in the light most favorable to the State, the evidence supports the jury finding Melland committed the charged crimes.

¶38 Melland does not challenge admission of the statements D.J. made to the Virginia Mason health care providers under ER 803(a)(4) or the certified copies of the no-contact order and his driver's license.

¶39 The medical records show that in March 2016, " 'relationship stressors' " were a cause of D.J.'s excessive drinking and alcohol withdrawal. On April 4, 2016, an SMC judge entered a no-contact order prohibiting "Tristan J. Melland" from having any contact with D.J.

¶40 The certified copy of the April 4, 2016 domestic violence no-contact order identifies D.J. and Melland by name, birth date, gender, and race. The no-contact order identifies Tristan Melland with a date of birth of "12-15-1986," the gender of "Male," and his race as "White." The no-contact order establishes Melland was "present ... in open court" when the order was issued. Melland signed the no-contact order on April 4, 2016 at "4:01 pm" and "acknowledged receipt of a copy of this order." The certified copy of the SMC domestic violence no-contact order was in effect until "4/4/2018." The uncontroverted testimony established the SMC no-contact order prohibiting Melland from contacting D.J. was the only no-contact order in effect in 2016. Detective Page testified the name and date of birth on the no-contact order matched the identifying information on the certified copy of Melland's driver's license.

¶41 The undisputed evidence showed Officer Stewart responded to a June 10, 2016 domestic violence 911 call and interviewed D.J. on June 11, 2016. Officer Stewart took photographs of the injuries to D.J.'s right hand and fingers. The police verified there was an SMC no-contact order in effect that prohibited Melland from having contact with D.J.

¶42 When admitted to Virginia Mason on June 26, 2016, D.J. was wearing a "poorly applied nonmedical splint" on her right pinky finger. Dr. Memon testified, " 'Patient reports that boyfriend of six years has abused her in the past and is responsible for breaking her finger.' " Dr. Frank noted her alcohol use " 'has been progressive, more recently drinking one-fifth of hard alcohol daily. She was a bartender for years and feels this fueled her abuse. ... She has also been drinking to deal with the stress of a long-term abusive relationship.' " Dr. Frank testified the "15 days" between the date D.J. stated her boyfriend broke her finger and the date she arrived at the hospital was consistent with the injury.

I think because she had a very ineffective splint on her hand which was allowing excessive movement, I thought the date which was 15 days, I guess, before I saw her seemed quite compatible with the picture I was seeing with some bruising, and swelling, and tenderness to touch.

¶43 Social worker Moore testified that in mid-July, D.J. said her "ex-boyfriend with DV history" was "violating a protection order that prevents him from being near her."

¶44 Viewing the evidence in the light most favorable to the State, sufficient evidence supports the jury finding Melland was the boyfriend who committed the charged crimes of misdemeanor violation of the April 4, 2016 SMC no-contact order and domestic violence assault of D.J. on June 10, 2016.

Insufficient Evidence of Assault in the Second Degree

¶45 In the alternative, Melland contends sufficient evidence does not support the jury finding he committed assault in the second degree in violation of RCW 9A.36.021(1)(a). Melland asserts the State did not prove beyond a reasonable doubt the essential mens rea element that he recklessly inflicted substantial bodily harm.

¶46 A person is guilty of assault in the second degree if he "intentionally assaults another and thereby recklessly inflicts substantial bodily harm." RCW 9A.36.021(1)(a). To convict Melland of assault in the second degree, the State has the burden of proving beyond a reasonable doubt that Melland "recklessly inflicted substantial bodily harm on [D.J.]." The State must prove "an intentional assault, which thereby recklessly inflicts substantial bodily harm." State v. R.H.S., 94 Wash. App. 844, 846, 974 P.2d 1253 (1999) (citing RCW 9A.36.021(1)(a) ).

¶47 RCW 9A.08.010(1)(c) defines "recklessness" as follows:

A person is reckless or acts recklessly when he or she knows of and disregards a substantial risk that a wrongful act may occur and his or her disregard of such substantial risk is a gross deviation from conduct that a reasonable person would exercise in the same situation.

¶48 There is both a subjective and an objective component to the mens rea of "recklessness." Rich, 184 Wash.2d at 904, 365 P.3d 746. Whether sufficient evidence supports finding a defendant acted recklessly " 'depends on both what the defendant knew and how a reasonable person would have acted knowing these facts.' " State v. Graham, 153 Wash.2d 400, 408, 103 P.3d 1238 (2005) (quoting R.H.S., 94 Wash. App. at 847, 974 P.2d 1253 ); Rich, 184 Wash.2d at 904, 365 P.3d 746. "The trier of fact is permitted to find actual subjective knowledge if there is sufficient information that would lead a reasonable person to believe that a fact exists." R.H.S., 94 Wash. App. at 847, 974 P.2d 1253 ; see RCW 9A.08.010(1)(b) (defining "knowledge"); see also State v. Johnson, 119 Wash.2d 167, 174, 829 P.2d 1082 (1992) ("The jury is permitted to find actual subjective knowledge if there is sufficient information which would lead a reasonable person to believe that a fact exists.").

¶49 Viewing the evidence and all reasonable inferences in the light most favorable to the State, the evidence showed Melland fractured D.J.'s finger. But nothing in the record shows what Melland knew or that he disregarded a substantial risk that a wrongful act may occur. The only evidence that describes the assault is from the Virginia Mason medical record that states, " 'During domestic dispute with boyfriend, he grabbed the[ ] phone from patient's hand which hurt her finger. Found in ED[ ] to be nondisplaced fracture.' " The evidence does not support finding that Melland knew of and disregarded a substantial risk that he would fracture D.J.'s finger when he grabbed the phone from her hand.

¶50 Contrary to the repeated assertions of the prosecutor in opening and closing argument, there was no evidence that Melland "grabbed her right hand so hard, squeezed, and twisted it that the bone broke" or that Melland grabbed D.J.'s hand "really hard and twist[ed] it and turned it so hard that it breaks."

¶51 The State argues the severity of the injury to D.J.'s finger shows Melland acted recklessly. The State's argument ignores the mens rea of recklessness. Evidence of the seriousness of the injury supports finding the infliction of substantial harm on D.J. but does not support finding that Melland "acted recklessly in inflicting those injuries." State v. Hayward, 152 Wash. App. 632, 648, 217 P.3d 354 (2009).

¶52 We conclude no reasonable trier of fact could find beyond a reasonable doubt that Melland disregarded a substantial risk that a wrongful act may occur and recklessly inflicted substantial bodily harm. Where sufficient evidence does not support a conviction, such a conviction "cannot constitutionally stand." Jackson, 443 U.S. at 317-18, 99 S.Ct. 2781. Reversal for insufficient evidence is "equivalent to an acquittal" and bars retrial for the same offense. State v. Wright, 165 Wash.2d 783, 792, 203 P.3d 1027 (2009) ; see also Burks v. United States, 437 U.S. 1, 11, 98 S. Ct. 2141, 57 L.Ed.2d 1 (1978) ("The Double Jeopardy Clause forbids a second trial for the purpose of affording the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding."); U.S. CONST. amend. V ; WASH. CONST. art. I, § 9 ; Because insufficient evidence supports the essential element of recklessness, we reverse and remand to dismiss the assault in the second degree conviction.

Sufficiency of Charging Document

¶53 For the first time on appeal, Melland claims he is entitled to dismissal without prejudice of the jury conviction on the lesser included offense of misdemeanor violation of the SMC no-contact order because the information omitted an essential element of the crime of felony violation of a court order in violation of RCW 26.50.110(4).

¶54 We review the adequacy of a charging document de novo. State v. Johnson, 180 Wash.2d 295, 300, 325 P.3d 135 (2014). "In criminal cases, the accused has the constitutional right to know the charges against them." Johnson, 180 Wash.2d at 300, 325 P.3d 135 (citing U.S. CONST. amend. VI ; WASH. CONST. art. I, § 22 ). Under the Sixth Amendment to the United States Constitution and article I, section 22 of the Washington State Constitution, "[a]ll essential elements of a crime, statutory or otherwise, must be included in a charging document in order to afford notice to an accused of the nature and cause of the accusation against him." State v. Kjorsvik, 117 Wash.2d 93, 97, 812 P.2d 86 (1991). "The information is constitutionally sufficient 'only if all essential elements of a crime, statutory and nonstatutory, are included in the document.' " Johnson, 180 Wash.2d at 300, 325 P.3d 135 (quoting State v. Vangerpen, 125 Wash.2d 782, 787, 888 P.2d 1177 (1995) ). Essential elements include facts that must be proved beyond a reasonable doubt to convict a defendant of the charged crime. Zillyette, 178 Wash.2d at 158, 307 P.3d 712.

¶55 " 'An essential element is one whose specification is necessary to establish the very illegality of the behavior charged.' " State v. Zillyette, 178 Wash.2d 153, 158, 307 P.3d 712 (2013) (quoting State v. Ward, 148 Wash.2d 803, 811, 64 P.3d 640 (2003) ); Johnson, 180 Wash.2d at 300, 325 P.3d 135. "This essential elements rule exists 'to apprise the accused of the charges against him or her and to allow the defendant to prepare a defense.' " Johnson, 180 Wash.2d at 300, 325 P.3d 135 (quoting Vangerpen, 125 Wash.2d at 787, 888 P.2d 1177 ). "If the State fails to allege every essential element, then the information is insufficient and the charge must be dismissed without prejudice." Johnson, 180 Wash.2d at 300-01, 325 P.3d 135 (citing State v. Nonog, 169 Wash.2d 220, 226 n.3, 237 P.3d 250 (2010) ).

¶56 The amended information charged Melland with assault in the second degree and felony violation of a court order. The amended information states, in pertinent part:

Count 1 Domestic Violence Felony Violation Of A Court Order
That the defendant Tristan James Melland in King County, Washington, on or about June 10, 2016, did know of and willfully violate the terms of a court order issued on April 4, 2016 by the Seattle Municipal Court ... pursuant to RCW chapter 10.99, for the protection of [D.J.], by (a) intentionally assaulting the said [D.J.]: or (b) conduct which was reckless and created substantial risk of death or serious physical injury to [D.J.];
Contrary to RCW 26.50.110(1), (4), and against the peace and dignity of the State of Washington.[ ]

¶57 The amended information charging Melland with felony violation of a no-contact order does not inform Melland that the assault "does not amount to assault in the first or second degree." RCW 26.50.110(4).

¶58 RCW 26.50.110(1)(a) states a party is guilty of misdemeanor violation of a protection order if (1) there is an order, (2) the person to be restrained knows of the order, and (3) the person violates the order. RCW 26.50.110(1)(a) provides, in pertinent part:

Whenever an order [for protection] is granted ... and the respondent or person to be restrained knows of the order, a violation of any of the following provisions of the order is a gross misdemeanor, except as provided in subsections (4) and (5) of this section:
(i) The restraint provisions prohibiting acts or threats of violence against, or stalking of, a protected party, or restraint provisions prohibiting contact with a protected party;
(ii) A provision excluding the person from a residence, workplace, school, or day care;
(iii) A provision prohibiting a person from knowingly coming within, or knowingly remaining within, a specified distance of a location.

¶59 RCW 26.50.110(4) elevates violation of a no-contact order from a gross misdemeanor to a felony. RCW 26.50.110(4) states, in pertinent part:

Any assault that is a violation of an order [for protection] ... that does not amount to assault in the first or second degree under RCW 9A.36.011 or 9A.36.021 is a class C felony, and any conduct in violation of such an order that is reckless and creates a substantial risk of death or serious physical injury to another person is a class C felony.

¶60 In Ward, the court held the statute clearly states assault in the second degree cannot serve as a predicate to felony violation of a no-contact order. Ward, 148 Wash.2d at 813-14, 64 P.3d 640. An information alleging felony violation of a no-contact order must state an assault that is in violation of a no-contact order " 'does not amount to assault in the first or second degree.' " Ward, 148 Wash.2d at 813-14, 64 P.3d 640 (quoting RCW 26.50.110(4) ).

¶61 "It is an 'ancient doctrine' that a criminal defendant may be held to answer for only those offenses contained in the indictment or information." State v. Fernandez-Medina, 141 Wash.2d 448, 453, 6 P.3d 1150 (2000) (quoting Schmuck v. United States, 489 U.S. 705, 717-18, 109 S. Ct. 1443, 103 L.Ed.2d 734 (1989) ): see also State v. Irizarry, 111 Wash.2d 591, 592, 763 P.2d 432 (1988). The Sixth Amendment and article I, section 22 of the Washington Constitution"preserves a defendant's 'right to be informed of the charges against him and to be tried only for offenses charged.' " Fernandez-Medina, 141 Wash.2d at 453, 6 P.3d 1150 (quoting State v. Peterson, 133 Wash.2d 885, 889, 948 P.2d 381 (1997) ). However, it is well established that "under RCW 10.61.006, a defendant can be convicted of an offense that is a lesser included offense of the crime charged, without being separately charged." Fernandez-Medina, 141 Wash.2d at 453-54, 6 P.3d 1150. RCW 10.61.006 states, "In all other cases the defendant may be found guilty of an offense the commission of which is necessarily included within that with which he or she is charged in the indictment or information."

¶62 The plain and unambiguous language of RCW 26.50.110 establishes misdemeanor violation of a no-contact order is a lesser included offense of felony violation of a no-contact order. RCW 26.50.110(1)(a) (violation of a no-contact order "is a gross misdemeanor, except as provided in subsections (4) and (5) of this section"). Here, the amended information unequivocally contains the essential elements of the lesser included offense of domestic violence misdemeanor violation of a no-contact order in violation of RCW 26.50.110(1)(a).

¶63 We affirm the conviction of domestic violence misdemeanor violation of a no-contact order, reverse the conviction of domestic violence assault in the second degree, and remand to dismiss the assault conviction.

WE CONCUR:

Andrus, J.

Dwyer, J.

      Domestic violence.

      ER 803(a)(4), "Statements for Purposes of Medical Diagnosis or Treatment;" provides: Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.

      Emphasis omitted.

      Emergency department.

      Accordingly, we need not address the argument that the testimony of Officer Stewart violated Melland's constitutional right to confrontation.

      Internal quotation marks omitted.

      Emphasis added.