STATE v. GOREE

MUNSON, C.J.

Joe Goree appeals his conviction for third degree assault, RCW 9A.36.030.1 The issue is whether the State must prove the one resisting arrest had knowledge of the lawfulness of the arrest. We affirm.

On September 30, 1981, Officer Williamson of the Pasco Police Department, off duty and in street clothes, observed Joe Goree standing outside the Dew Drop Inn. The officer believed a warrant existed for Mr. Goree's arrest; a subsequent call to the Pasco police dispatcher confirmed his belief. Accompanied by Deputy Weekes, then a member of the Franklin County sheriff's office and also off duty and in street clothes, Officer Williamson parked where they could observe Mr. Goree and wait for uniformed officers to arrive.

Officer Espinoza, on duty, in uniform and in a marked police vehicle, proceeded to the Dew Drop Inn and spotted Mr. Goree. Another police officer arrived in a second marked police vehicle; this officer observed Mr. Goree leaving the front of the Dew Drop Inn and pursued him by vehicle.

Although there is minor disagreement in the record concerning exactly when Mr. Goree began to run, Mr. Goree testified that another man standing with him recognized Deputy Weekes. Mr. Goree saw the two marked police vehicles arrive and began running when Deputy Weekes and Officer Espinoza approached him.

Deputy Weekes and Officer Espinoza chased Mr. Goree on foot. They apparently caught Mr. Goree twice, but he broke away each time. Both Deputy Weekes and Officer Espinoza testified Mr. Goree picked up a steel lawn chair, raised it above his head and struck Officer Espinoza. Mr. Goree remembered shoving a lawn chair aside in the footrace, but denied picking it up or hitting Officer Espinoza. Neither of the witnesses saw him pick up a lawn chair. Mr. Goree's sole explanation for running was that he panicked. He stated he was never told to stop or that he was under arrest. Officers Williamson and Espinoza testified they told Mr. Goree to stop, but no one told him he was under arrest. Mr. Goree escaped.

The charge underlying the warrant was later dismissed. At trial, Mr. Goree denied knowing of the warrant, but there is no challenge to its lawful existence at the time the officers attempted this arrest.

From the beginning of the trial, the issue was whether Mr. Goree could knowingly intend to avoid lawful apprehension when he did not know there was a warrant out for his arrest. The State argued that knowledge of the warrant was unimportant. Mr. Goree argued that absence of knowledge of the lawfulness of the arrest meant the State could not prove intent to prevent a lawful apprehension. The court allowed Mr. Goree to present evidence showing he did not know of the outstanding warrant, but refused to dismiss for lack of proof of Mr. Goree's knowledge of the warrant.

[1] Mr. Goree first contends the trial court erred "by not ruling on the correct interpretation of the element of intent and allowing two different interpretations to be argued to the jury ..." Mr. Goree did not propose an instruction presenting his theory of the case. At oral argument, he contended no other instructions were necessary. The error, he contends, is the trial court's failure to order the State not to argue its interpretation of the statute.

State v. Allen, 89 Wn.2d 651, 654, 574 P.2d 1182 (1978); Champagne v. Department of Labor & Indus., 22 Wn.2d 412, 156 P.2d 422 (1945). Each party is entitled to instructions on its theory of the case if it supplies instructions which accurately state the law. Egede-Nissen v. Crystal Mt., Inc., 93 Wn.2d 127, 606 P.2d 1214 (1980); State v. Humphries, 21 Wn.App. 405, 586 P.2d 130 (1978); State v. Long, 19 Wn.App. 900, 578 P.2d 871 (1978). An instruction which follows the words of a statute is proper unless the statutory language is not reasonably clear or is misleading. State v. Humphries, supra; State v. Johnson, 7 Wn.App. 527, 500 P.2d 788 (1972), aff'd, 82 Wn.2d 156, 508 P.2d 1028 (1973).

The proper method to follow, if Mr. Goree believed the State's interpretation of the statute was incorrect, was to offer the court an instruction correctly stating the law and to provide authority for the interpretation. With such an instruction, the trial court would be able to charge the jury and forbid argument contrary thereto.

Here, the jury was instructed in the language of the former RCW 9A.36.030(1)(a). Mr. Goree admits no other instruction is necessary so no further instructions should have been given. Petersen v. State, 100 Wn.2d 421, 432, 671 P.2d 230 (1983). Both Mr. Goree and the State were able to argue their theories of the case. That the two interpretations of the statute were diametrically opposed under these facts does not change the analysis; many views of the application of a statute are diametrically opposed. The jury was properly charged.

Mr. Goree next contends that, without proof he knew the arrest was lawful, the evidence is not sufficient to convict him. State v. Green, 94 Wn.2d 216, 616 P.2d 628 (1980). We disagree.

[2] Mr. Goree's interpretation makes RCW 9A.36.030(1)(a) a subjective statute. His interpretation would allow one being arrested to decide whether he considers the arrest lawful and to decide the level of resistance he wishes to use.2 The primary purpose of the statute is "to prohibit assaultive behavior which interferes with the custodian's lawful obligations to insure a peaceful and orderly custody." (Italics ours.) State v. Jury, 19 Wn.App. 256, 269, 576 P.2d 1302 (1978). The use of force to prevent even an unlawful arrest which threatens only a loss of freedom is not reasonable. State v. Rousseau, 40 Wn.2d 92, 241 P.2d 447 (1952); State v. Westlund, 13 Wn.App. 460, 536 P.2d 20, 77 A.L.R.3d 270 (1975). The law does not envision that all parties have to be in agreement or even understand the arrest is lawful at the time of arrest. The facts show Mr. Goree intended to resist apprehension; the apprehension was lawful3 and an assault occurred in the resistance. These facts also show Mr. Goree's reaction was an unreasonable response and therefore an assault. See also State v. Williams, 29 Wn.App. 86, 627 P.2d 581 (1981).

The word "lawful" in the statute is to prevent the State from prosecuting one who has used force to prevent an unlawful arrest. State v. Hoffman, 35 Wn.App. 13, 664 P.2d 1259 (1983). State v. Johnson, 29 Wn.App. 307, 309, 628 P.2d 479 (1981) states:

An illegal arrest is an assault and battery; the one assaulted has the right to use reasonable force. Only an individual who assaults an officer doing his lawful duty can be prosecuted under this section of the third degree assault statute. The jury verdict is supported by substantial evidence. State v. Green, supra.

Affirmed.

GREEN, J., and STAUFFACHER, J. Pro Tem., concur.

Review denied by Supreme Court February 17, 1984.