[As amended by order of the Court of Appeals May 13, 1981, deleting directions that the opinion should not be published.]
In this appeal from a conviction for third degree assault, defendant argues that probable cause did not support his warrantless arrest, and that the State failed to prove that he assaulted a police officer with intent to "prevent" or "resist" his apprehension or detention pursuant to RCW 9A.36.030(1)(a). We disagree and affirm.
On the evening of July 25, 1979, Officer Wyatt Gilkie, a uniformed member of the Long Beach police force, was dispatched to investigate a noise disturbance call. Near the scene, he observed defendant Randy Johnson straddling a woman who was crying and struggling to get up.
After much physical effort and the arrival of four more police officers, Johnson was placed unhandcuffed in the rear of the patrol car. The front and back seats of the car were separated by a partition which allowed approximately 6 inches of clearance between the top of the partition and roof. During the long drive to the police station, Johnson repeatedly reached over the partition and tapped Officer Gilkie on the head, interfering with the officer's driving. Defendant testified, in essence, that he tapped the officer on the head to be insulting. Officer Gilkie was not physically harmed by the assault. In a trial to the bench, defendant was convicted of third degree assault solely on the basis of his conduct within the patrol car.
We first address the question of whether probable cause existed to make defendant's arrest a "lawful apprehension or detention," pursuant to RCW 9A.36.030(1)(a). (Italics ours.) The existence of probable cause for the arrest is crucial to the State's case because, as defendant correctly contends, not only does a citizen have the right to resist an unlawful arrest so long as that resistance is reasonable in light of all the circumstances, Kennewick v. Keller, 11 Wn.App. 777, 787, 525 P.2d 267 (1974), but if an officer's actions are unlawful, a defendant cannot be convicted of third degree assault, which requires intent to prevent or resist lawful apprehension or detention, State v. Humphries, 21 Wn.App. 405, 408, 586 P.2d 130 (1978).
Applying these principles to the facts of the present case, we have determined, in the course of our independent evaluation of the record,
The next question is whether defendant assaulted the arresting officer with intent to "prevent" or "resist" his apprehension or detention, within the meaning of RCW 9A.36.030(1)(a).
There being no other assignments of error with merit, defendant's judgment and conviction are affirmed.
REED, C.J., and PETRIE, J., concur.