STATE v. HOLZKNECHT (2010)

PUBLISHED IN PART

¶ 1 On December 1, 2007, two-month-old Grace Holzknecht was admitted to Children's Hospital with three leg fractures. Doctors determined the fractures were not caused by accidental trauma. Grace's father was charged with assault. Eric Holzknecht challenges his conviction on numerous grounds, including the constitutionality of RCW 10.58.035, violation of his Sixth Amendment right to confrontation, erroneous jury instructions and insufficiency of the evidence. We affirm.

FACTS

¶ 2 Amy and Eric Holzknecht's first child, Grace, was born on September 27, 2007. The Holzknechts lived with Eric's family, and Amy stayed home to care for Grace. Eric was also involved in caring for Grace, including changing her diaper. Three or four times, Grace was solely in her father's care.

¶ 3 Grace was a very fussy baby. On one occasion, the young parents called 911 because Grace would not stop crying. Paramedics assured them she was fine. When the crying continued, Amy insisted they take Grace to the emergency room. The staff there also stated that she was fine. The Holzknechts expressed their concerns to Grace's pediatrician, who told them Grace was normal. Sometimes the stress of a fussy newborn made Eric lose his patience. On those occasions, he would go for a walk or a drive to the store. When Amy became frustrated, her in-laws would take Grace into their room.

¶ 4 Grace cried during diaper changes no matter who changed her. At times, Amy thought Eric was rough and moving too fast when changing Grace. On several occasions, Amy asked him to be gentler with her. Sometimes he slowed down, but other times he became irritated and told her she “was being silly about it.”¹ There were times Amy thought Eric might have hurt the baby. Amy's aunt, Lorinda Feagles, saw Eric change Grace's diaper and dress her in the hospital. She thought he was too quick and rough, and was “either very comfortable with a newborn or he was maybe showing off .”²

¶ 5 In early to mid-November 2007, Eric was changing Grace's diaper when she began to defecate. Eric grabbed her legs and pulled her out of the way. When Amy came into the room, Eric was crying. He said, “I think I may have hurt her.”³ Grace's legs were visibly bruised. One leg had two bruises close to the knee; the other had two bruises close to the ankle. By the next day, however, Grace was “[k]icking around, all happy.”⁴

¶ 6 Feagles noticed bruises on Grace's legs when the Holzknechts brought her for a visit. Amy “covered them up real quick,”⁵ and Feagles took another look later, when she was alone with Grace.

¶ 7 On the afternoon of November 30, 2007, Amy left Grace in Eric's care at about three o'clock while she looked for a job. She returned around five o'clock. Grace was extremely fussy that evening and cried throughout the night. Around midnight, the Holzknechts noticed Grace was holding her right leg up and inward, as if to protect it. The next morning, they took Grace first to a walk-in clinic and then to the emergency room at Providence Hospital in Everett. An x-ray showed a fracture to the right femur. The Holzknechts stated there had been no fall or other trauma, and nobody but them had cared for Grace in the previous 24 hours.

¶ 8 Grace was taken by ambulance to Children's Hospital in Seattle, where she was given a full body x-ray, which revealed a fresh long oblique or spiral fracture to the right femur, a one-to-two week old metaphyseal fracture (also known as classic metaphyseal lesion or CML) of the right tibia, and an even older metaphyseal fracture or CML of the left tibia. Pediatrician and pediatric radiologist Dr. Stephen Done concluded the fractures were the result of nonaccidental trauma.

¶ 9 Social worker Doris Bartel informed the Holzknechts about the fractures. Amy told Bartel she was concerned with how rough her husband had been during diaper changes. Holzknecht admitted he might have pulled too hard on Grace's leg during diaper changes, but stated that if he did, it was unintentional.

¶ 10 The police and Children's Protective Services were called, and Grace was taken into protective custody. Amy told a police officer that she had seen her husband pick up Grace by her leg, that she had warned him on several occasions to be more careful, and that he sometimes lost his patience with Grace. Holzknecht confirmed Amy's report and signed a statement saying, “There have been times that I might have been rough with Grace's legs when changing her.”⁶ Describing the defecating incident, he stated:

I was a little frustrated with the situation and accidentally grabbed and pushed a little too hard. After grabbing her, I realized that she had marks on her legs and that she was hurt. I felt horrible for hurting my child. I would never intentionally hurt my child, but I feel that the injuries could be my fault. There have been times when I grabbed Grace by one leg to change her. The break could have happened during one of those changing incidents or last night when I was examining her possible leg injury .[⁷ ]

The Holzknechts gave similar responses to various other people who interviewed them.

¶ 11 Children's Hospital has a child protective team that handles cases of suspected child abuse. Dr. Naomi Sugar, a pediatrician specializing in child abuse cases, is part of the team. She examined Grace and reviewed her records, including the x-rays. She also ordered a series of tests to determine whether there were possible metabolic or genetic causes for Grace's injuries. The tests, performed by three geneticists, an orthopedist, and an endocrinologist, ruled out any genetic or metabolic cause. After considering all the potential causes, Dr. Sugar concluded Grace's injuries were not accidental but were the result of abuse.

¶ 12 Holzknecht was charged with three counts of assault of a child in the second degree. The State alleged an aggravating factor (that defendant knew or should have known that the victim was particularly vulnerable and incapable of resistance).

¶ 13 A jury convicted Holzknecht of two counts of assault of a child in the second degree and one count of the lesser crime of assault of a child in the third degree. The jury also found the vulnerable victim aggravating factor established as to each count. Holzknecht appeals.

DISCUSSION

Jury Instructions Defining Recklessness and Other Mens Rea

¶ 14 Holzknecht makes a number of arguments not raised below. We do not review issues raised for the first time on appeal unless they are manifest errors affecting a constitutional right.⁸ “In analyzing the asserted constitutional interest, we do not assume the alleged error is of constitutional magnitude. We look to the asserted claim and assess whether, if correct, it implicates a constitutional interest as compared to another form of trial error.”⁹

¶ 15 The error must also be manifest.¹⁰ In this context, “manifest” requires a showing of actual prejudice.¹¹ To demonstrate actual prejudice, there must be a “ ‘plausible showing by the [appellant] that the asserted error had practical and identifiable consequences in the trial of the case.’ “¹² Manifest errors affecting constitutional rights are subject to harmless error analysis.¹³ As a rule, a constitutional error is harmless only if the appellate court is convinced beyond a reasonable doubt that any reasonable jury would have reached the same result in the absence of the error.¹⁴

¶ 16 To ensure that the actual prejudice inquiry and the harmless error analysis are distinct, “the focus of the actual prejudice must be on whether the error is so obvious on the record that the error warrants appellate review.”¹⁵ “If the facts necessary to adjudicate the claimed error are not in the record on appeal, no actual prejudice is shown and the error is not manifest.' “¹⁶

¶ 17 Holzknecht argues the jury instructions violated due process by creating mandatory presumptions and relieving the State of its burden to prove the separate elements of intent and recklessness or criminal negligence. The instructions provided:

A person commits the crime of assault in the second degree when he or she intentionally assaults another and thereby recklessly inflicts substantial bodily harm.[17]

A person acts with intent or intentionally when acting with the objective or purpose to accomplish a result which constitutes a crime.[¹⁸ ]

A person commits the crime of assault in the third degree when he or she [w]ith criminal negligence, causes bodily harm accompanied by substantial pain that extends for a period sufficient to cause considerable suffering.[[¹⁹ ]

A person is criminally negligent or acts with criminal negligence when he or she fails to be aware of a substantial risk that a wrongful act may occur and the failure to be aware of such substantial risk constitutes a gross deviation from the standard of care that a reasonable person would exercise in the same situation.

Criminal negligence is also established if a person acts intentionally or knowingly or recklessly.[20]

A person knows or acts knowingly or with knowledge when he or she is aware of a fact, circumstances or result which is described by law as being a crime, whether or not the person is aware that the fact, circumstance or result is a crime.

․

Acting knowingly or with knowledge also is established if a person acts intentionally.[21]

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 the disregard of such substantial risk is a gross deviation from conduct that a reasonable person would exercise in the same situation.

Recklessness is also established if a person acts intentionally or knowingly.[[22]

¶ 18 Holzknecht did not except to these instructions below. However, if Holznecht is correct, the claimed errors are of constitutional magnitude and are obvious on the record. Holzknecht may raise the issue for the first time on appeal.²³

¶ 19 A similar challenge was addressed in State v. Goble,²⁴ in which Division Two of this court held that the instructions created a mandatory presumption.²⁵ Goble was charged with third degree assault of a police officer.²⁶ The to-convict instruction required the State to prove that Goble assaulted the victim and knew at the time of the assault that the victim “was a law enforcement officer ․ who was performing his or her official duties.”²⁷ The instructions stated that “[a]cting knowingly or with knowledge also is established if a person acts intentionally.”²⁸

¶ 20 The court agreed with Goble that the knowledge instruction was confusing and relieved the State of its burden to prove Goble knew the victim was a police officer.²⁹ Because the instruction “allowed the jury to presume Goble knew [the officer's] status at the time of the incident if it found Goble had intentionally assaulted [the officer],” the court held the instruction “conflated the intent and knowledge elements required under the to-convict instruction into a single element and relieved the State of its burden of proving that Goble knew [the officer's] status if it found the assault was intentional.”³⁰

¶ 21 Goble was distinguished by another Division Two decision, State v. Keend.³¹ Keend was charged with second degree assault.³² The jury was provided with a recklessness instruction identical to that given here.³³ Keend argued the instruction allowed the jury to presume that he recklessly inflicted substantial bodily harm on the victim if it found he intentionally assaulted the victim.³⁴

¶ 22 The Keend court rejected this argument, noting that the to-convict instruction clearly advised the jury that the mens rea of “intentionally” related to the act (assault), while the mens rea of “recklessly” related to the result (substantial bodily harm), both of which were defined.³⁵ There was thus no possibility the jury was confused because the instructions did not conflate the mental states and were accurate, clear, and separate, and did not create a presumption that if the defendant intentionally assaulted the victim, he also intended to inflict substantial bodily harm.³⁶ The same is true here and we agree with the Keend court's analysis.

¶ 23 In State v. Gerdts,³⁷ Division Two addressed a similar challenge in the context of a charge of malicious mischief in which the State was required to prove the defendant knowingly and maliciously caused damage.³⁸ Gerdts contended the knowledge instruction created a mandatory presumption that he acted knowingly if the jury found he acted intentionally.³⁹ The Gerdts court rejected his argument because the instructions “required the jury to find that Gerdts knowingly and maliciously caused physical damage to the property of another” and there was no second mens rea element involved.⁴⁰

¶ 24 In response to Goble, former Washington pattern jury instruction 10.02⁴¹ was revised in 2008 to add bracketed language as follows: “[When acting knowingly [as to a particular fact] is required to establish an element of a crime, the element is also established if a person acts intentionally [as to that fact].]”⁴² The revision was intended “to follow the statutory language more closely” and clarify that “knowledge about Fact A (the victim's status) cannot be inferred from an intent about Fact B (committing an assault).”⁴³ Former WPIC 10.03⁴⁴ was also revised to include language referencing a particular result or fact: “[When recklessness [as to a particular [result] [fact]] is required to establish an element of a crime, the element is also established if a person acts [intentionally] [or] [knowingly] [as to that [result] [fact]].]”⁴⁵

¶ 25 After the 2008 amendments, Division Two considered a challenge to a recklessness instruction in an assault case. In State v. Hayward,⁴⁶ the court held the instruction conflated the mens rea for assault with that required for the resulting harm, relieving the State of its burden of proving the separate element of reckless infliction of substantial bodily harm.⁴⁷ The court relied heavily on the 2008 amendment to WPIC10.03:

The revision to WPIC 10.03, carried out in order “to more closely follow the statutory language,” shows that the previous version of WPIC 10.03 (1994) did not adequately follow RCW 9A.08.010․

․ While jury instruction 10 mirrored former WPIC 10.03, it did not adequately follow RCW 9A.08.010(2), as evidenced by the 2008 amendment to WPIC 10.03.[48]

We respectfully disagree. We see nothing in former WPIC 10.03 suggesting a departure from the statute. RCW 9A.08.010(2) provides:

When a statute provides that criminal negligence suffices to establish an element of an offense, such element also is established if a person acts intentionally, knowingly, or recklessly. When recklessness suffices to establish an element, such element also is established if a person acts intentionally or knowingly. When acting knowingly suffices to establish an element, such element also is established if a person acts intentionally.

Clarification of the standard instruction does not amount to an indictment of earlier versions.

¶ 26 Most recently in State v. Sibert,⁴⁹ the State was required to prove the defendant delivered a controlled substance knowing its nature as a controlled substance. Sibert argued the language “[a]cting knowingly or with knowledge also is established if a person acts intentionally” created a conclusive presumption of knowledge once any intentional act was proved.⁵⁰ A plurality of the Washington Supreme Court rejected his argument, stating, “Under a plain reading of the jury instructions, the State was not relieved of proving every element of the charged offense.”⁵¹ The court described Gerdts as limiting Goble to its facts, and endorsed the Gerdts analysis.⁵²

¶ 27 We are persuaded the instructions here followed the statute and correctly informed the jury of the applicable law, including the rule that a mental state is established by proof of a more serious mental state. The instructions made clear that a different mental state must be determined for each element: intent as to assault, and recklessness as to infliction of substantial bodily harm. The instructions thus clearly require two separate inquiries, and nothing in the knowledge instruction suggests otherwise.

¶ 28 Indeed, on the record here, this concern is refuted by the verdict. The jury convicted Holzknecht of two counts as charged, but on the third count convicted him only of the lesser crime of assault in the third degree. The jury thus clearly understood the difference between the intentional act of assault and the mens rea required for the resulting injury (recklessness versus negligence).

¶ 29 The instructions did not create a mandatory presumption or relieve the State of its burden of proof.

¶ 30 Affirmed.

¶ 31 The balance of this opinion having no precedential value, the panel has determined it should not be published in accordance with RCW 2.06.040.

Out-of-Court Statements

¶ 32 Holzknecht argues the court erred in admitting his out-of-court statements under RCW 10.58.035 and in entering a belated written order on the issue. He also argues RCW 10.58.035 is unconstitutional.

¶ 33 Generally, we review evidentiary rulings for abuse of discretion.⁵³ But determining the admissibility of a defendant's statement under RCW 10.58.035 is a mixed question of law and fact.⁵⁴ We review the application of the law to the facts de novo.⁵⁵

¶ 34 Holzknecht contends his out-of-court statements were erroneously admitted because there is no independent proof of the crime. The corpus delicti doctrine is a rule that tests both the admissibility and the sufficiency of evidence in criminal cases.⁵⁶ Under that rule, a defendant's confession or admissions are not admissible at trial and he cannot be convicted unless independent corroborating evidence establishes the fact of injury and a causal connection between the injury and a criminal act .⁵⁷ The purpose of the rule is to prevent defendants from being unjustly convicted based on confessions alone.⁵⁸

¶ 35 In 2003, the legislature enacted RCW 10.58.035, which provides:

(1) In criminal and juvenile offense proceedings where independent proof of the corpus delicti is absent, and the alleged victim of the crime is dead or incompetent to testify, a lawfully obtained and otherwise admissible confession, admission, or other statement of the defendant shall be admissible into evidence if there is substantial independent evidence that would tend to establish the trustworthiness of the confession, admission, or other statement of the defendant.

(2) In determining whether there is substantial independent evidence that the confession, admission, or other statement of the defendant is trustworthy, the court shall consider, but is not limited to:

(a) Whether there is any evidence corroborating or contradicting the facts set out in the statement, including the elements of the offense;

(b) The character of the witness reporting the statement and the number of witnesses to the statement;

(c) Whether a record of the statement was made and the timing of the making of the record in relation to the making of the statement; and/or

(d) The relationship between the witness and the defendant.[59]

¶ 36 Holzknecht sought to exclude admission of his statements on grounds that the corpus delicti could not be established. The court found the statements admissible under RCW 10 .58.035 so long as the State met the burden set forth in the statute. In so ruling, the court stated, “And if you believe the State hasn't met its burden of establishing the criteria to get that in under the statute, you can raise the issue at that time.⁶⁰

¶ 37 Holzknecht did not renew his objections at trial. The State therefore argues he waived any challenge to admission of the evidence under RCW 10.58.035.

¶ 38 The State is correct. “ ‘[W]hen a ruling on a motion in limine is tentative, any error in admitting or excluding evidence is waived unless the trial court is given an opportunity to reconsider its ruling.’ “⁶¹ The court expressly indicated that further objections were necessary if Holzknecht wished to challenge admission of the evidence under the statute. The ruling was therefore tentative, not final. Holzknecht waived any challenge to the admissibility of his statements under RCW 10.58.035.⁶²

¶ 39 Holzknecht argues, however, that RCW 10.58.035 is unconstitutional. He contends the statute violates due process because it does away with the corpus delicti doctrine and allows for convictions based upon unreliable and uncorroborated extrajudicial statements by defendants. He also argues the statute violates the separation of powers doctrine because it invades the judiciary's power to adopt procedural rules necessary to the operation of the courts and threatens judicial independence by overriding the rules of evidence.

¶ 40 In its recent decision in State v. Dow,⁶³ the Washington Supreme Court addressed the due process challenge. Dow, like Holzknecht, argued that the statute impermissibly erodes the corpus delicti doctrine. The court disagreed, explaining that “[w]here a rule is judicially created and/or emanates from the common law, the legislature is generally free to codify or eliminate such a rule to the extent it does not violate due process standards or other constitutional principles.”⁶⁴ The court held the corpus delicti rule is mandated by neither the federal nor state constitution.⁶⁵ Therefore it concluded that RCW 10.58.035 does not violate due process.⁶⁶

¶ 41 The Dow court did not directly address a separation of powers challenge to RCW 10.58.035. However, its holding that the legislature is free to modify the common law doctrine of corpus delicti disposes of the argument.

¶ 42 Similarly, Holzknecht contends RCW 10.58.035 impermissibly conflicts with the rules of evidence by mandating admission of evidence under certain circumstances, thereby invading the prerogative of trial courts and threatening judicial independence. Assuming this argument has any force after Dow we reject it, because it is premised upon the proviso that statements of a defendant “shall be admissible into evidence.”⁶⁷ But for the statute to apply, the statement must be “otherwise admissible.”⁶⁸ The court is not deprived of its discretion under the rules of evidence.

¶ 43 The court did not err in admitting Holzknecht's out-of-court statements.

Expert Testimony

¶ 44 Holzknecht argues the court improperly allowed Dr. Sugar and Dr. Done to describe Grace's injuries as “nonaccidental trauma” and characteristic of “child abuse.” He contends that in using these terms, the witnesses were rendering impermissible legal opinions on the mens rea required for the charged crimes.

¶ 45 “Legal opinions on the ultimate legal issue before the court are not properly considered under the guise of expert testimony.”⁶⁹ Here, the jury was asked to decide, among other things, whether Holzknecht recklessly inflicted Grace's fractures. The jury was instructed that “[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 the disregard of such substantial risk is a gross deviation from conduct that a reasonable person would exercise in the same situation. Recklessness also is established if a person acts intentionally or knowingly.”⁷⁰

¶ 46 Holzknecht contends “accident” is a legal term, and relies on a discussion by the United States Supreme Court in a case dealing with article 17 of the Warsaw Convention:⁷¹

The term “accident” has at least two plausible yet distinct definitions. On the one hand, ․ “accident” may be defined as an unintended event. See Webster's New World College Dictionary 8 (4th ed.1999) (“a happening that is not ․ intended”): see also American Heritage Dictionary 10 (4th ed.2000) ( “[l]ack of intention; chance”). On the other hand, ․ the term “accident” may be defined as an event that is “unusual” or “unexpected,” whether the result of intentional action or not. Ibid. See Black's Law Dictionary 15 (6th ed.1990) (“an unusual, fortuitous, unexpected, unforeseen, or unlooked for event, happening or occurrence” and “if happening wholly or partly through human agency, an event which under the circumstances is unusual and unexpected by the person to whom it happens”): see also American Heritage Dictionary, supra, at 10 (“[a]n unexpected and undesirable event,” “[a]n unforeseen incident”).[⁷² ]

Contrary to Holzknecht's assertion, this discussion confirms that “accident” is not a term of art, and that courts resort to its common meaning when dealing with it. Here, Dr. Sugar and Dr. Done both explained that Grace could not have caused her own injuries and that the fractures could not have happened from rolling over, normal diaper changes, or lifting her legs up. Dr. Done also testified that the fractures could not have happened from a fall. Dr. Sugar thought the femur fracture might have been caused by such a fall from a crib, but no such incident was reported. Both witnesses testified the fractures could have been caused by “yanking.”⁷³

¶ 47 At no point in their testimony did Dr. Sugar or Dr. Done opine who was responsible for the yanking, or whether it was done with disregard for the likelihood of injury. The term “nonaccidental” did not amount to an opinion on the mens rea of the perpetrator.

¶ 48 Holzknecht also challenges the witnesses' use of the term “child abuse” as contrary to the definition of the term for services provided by the Department of Social and Health Services: “Physical abuse means the nonaccidental infliction of physical injury or physical mistreatment on a child.”⁷⁴ But the jury was not advised of this definition, and the common understanding of the term is mistreatment, whether intentional or neglectful.⁷⁵

¶ 49 Use of the terms “nonaccidental trauma” and “child abuse” did not constitute legal opinions on the mens rea of the perpetrator of Grace's injuries, and the court did not abuse its discretion in allowing the testimony.

Out-of-Court Statements As to the Cause of Injuries

¶ 50 Both Dr. Sugar and Dr. Done testified that Grace's injuries were not the result of a medical condition. In reaching that conclusion, Dr. Sugar relied, in part, upon the opinion of the other physicians who had ruled out osteogenesis imperfecta and metabolic conditions as the cause of Grace's fractures. During her testimony, Dr. Sugar quoted parts of these doctors' reports. Holzknecht argues this violated his confrontation rights.

¶ 51 Holzknecht raises this issue for the first time on appeal.

¶ 52 A claimed confrontation violation is of constitutional magnitude.⁷⁶ The question is whether the alleged error is also manifest.⁷⁷

¶ 53 The Sixth Amendment's confrontation clause provides that “[i]n all criminal prosecutions, the accused shall enjoy the right ․ to be confronted with the witnesses against him.”⁷⁸ Under Crawford v. Washington,⁷⁹ testimonial statements by a nontestifying witness are admissible only if the witness is unavailable and the accused had a prior opportunity to cross-examine the witness.⁸⁰ If the hearsay evidence is not testimonial, however, the confrontation clause is not implicated.⁸¹

¶ 54 Although the United States Supreme Court has not provided a comprehensive definition of “testimonial,” it has held that medical reports created for treatment purposes are not testimonial.⁸² Holzknecht contends the nontestifying doctors' reports were created not for treatment purposes but for the purpose of litigation, and are therefore testimonial. He relies on the fact that Dr. Sugar was part of the child protective team, which works with law enforcement and Child Protective Services (CPS) to assess whether patient injuries constitute child abuse. Because Dr. Sugar asked the other doctors to evaluate Grace, Holzknecht alleges they too must have done their work in anticipation of litigation.

¶ 55 The record does not support this contention. Definitive diagnosis is necessary to proper treatment, and even if the evaluating physicians knew of the potential criminal charge, their conclusions were also pertinent to treatment. Dr. Sugar testified that she was able to rule out other causes for the fractures because the specialists evaluated Grace and found no reason for her to have weak bones. The record does not show whether the doctors whose opinions she cited were also part of the child protective team, whether they were acting in that capacity when they evaluated Grace, or whether they knew they were giving opinions in a case of suspected child abuse.

¶ 56 Holzknecht failed to raise this issue below. The record does not support his claim that the doctors created their reports in anticipation of litigation and not for treatment purposes. Therefore, no actual prejudice is shown and the alleged error is not manifest. The argument cannot be raised for the first time on appeal.⁸³

Failure to Call Impeachment Witness

¶ 57 During cross-examination, Amy was asked by defense counsel to describe her relationship with her husband. She said it was “wonderful,” and explained they were “[t]he best of friends” and had a “[g]reat faith life.”⁸⁴ On redirect, the prosecutor asked Amy to explain what she meant by a “great faith life” and whether she was submissive to her husband. She denied this. Then the prosecutor asked whether she remembered an interview for a CPS assessment during which she stated she was submissive to her husband. Amy did not remember the alleged statement. The prosecutor did not offer extrinsic evidence of the alleged statement, and did not otherwise make any reference to the alleged inconsistent statement during the remainder of the trial or during closing argument.

¶ 58 Holzknecht argues for the first time on appeal that the State violated his confrontation rights and committed prosecutorial misconduct when it failed to prove Amy's alleged prior inconsistent statement.

¶ 59 Failure to prove alleged prior inconsistent statements may be a confrontation clause violation and may be raised for the first time on appeal.⁸⁵ “Constitutional error is harmless when the conviction is supported by overwhelming evidence,” but reversal is required unless we are convinced “any reasonable jury would have reached the same result in the absence of the error.”⁸⁶

¶ 60 A person can be convicted of a crime only by evidence, not by innuendo.⁸⁷ “ ‘[A] prosecutor may not use impeachment as a guise for submitting to the jury substantive evidence that is otherwise unavailable.’ “⁸⁸ Thus, impeachment by reference to extrinsic evidence never introduced may rise to a violation of the right to confrontation.⁸⁹ It may also constitute prosecutorial misconduct. When prosecutorial misconduct is raised for the first time on appeal, we will not review it unless the prosecutor's behavior was “ ‘so flagrant and ill-intentioned that it causes an enduring and resulting prejudice that could not have been neutralized by a curative instruction to the jury.’ “⁹⁰ Prejudice is established only if there is a substantial likelihood the misconduct affected the jury's verdict.⁹¹

¶ 61 In these circumstances, determining whether a prosecutor has inappropriately referred to extrinsic evidence “requires examining whether the focus of the questioning is to impart evidence within the prosecutor's personal knowledge without the prosecutor formally testifying as a witness.”⁹² Questions have been found inappropriate when the prosecutor had referred to the alleged statements during closing argument as if it were in evidence,⁹³ or when the alleged statements go to a central issue in the case.⁹⁴ Here, the prosecutor made no reference to Amy's alleged prior statement during the remainder of the trial or closing argument. Presumably the inference from the question was a suggestion that Amy would protect and defer to her husband.

¶ 62 But Amy's credibility was not a central issue. When viewed in the context of the entire record, especially the medical testimony and Holzknecht's and Amy's statements admitting that he handled Grace roughly during diaper changes and might have injured her, the suggestion that Amy was submissive to her husband was inconsequential and the misconduct was not prejudicial. We are convinced that any reasonable juror would have reached the same result in the absence of the allegedly inappropriate question.

Jury Instruction Regarding Punishment

¶ 63 Holzknecht argues that because a positive answer to the special interrogatory regarding the vulnerability of the victim was necessary to provide the basis for an exceptional sentence, the jurors had a role in punishment, and instructing them that they may not consider that punishment follows conviction therefore violated his right to jury trial and due process rights.⁹⁵ Holzknecht did not raise this issue below. If correct, the issue implicates a defendant's constitutional right to jury trial.

¶ 64 But the argument is not correct. It is well established that when a jury has no sentencing function, it should be admonished to “ ‘reach its verdict without regard to what sentence might be imposed.’ “⁹⁶ The rule is a reflection of the basic division of labor in our legal system between judge and jury.

“The jury's function is to find the facts and to decide whether, on those facts, the defendant is guilty of the crime charged. The judge, by contrast, imposes sentence on the defendant after the jury has arrived at a guilty verdict. Information regarding the consequences of a verdict is therefore irrelevant to the jury's task.[⁹⁷ ]

¶ 65 Holzknecht argues this distinction is obsolete in the wake of Apprendi v. New Jersey⁹⁸ and Blakely v. Washington.⁹⁹

¶ 66 In Apprendi, the United States Supreme Court held that other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt.¹⁰⁰ Relying on Apprendi, the Court in Blakely invalidated those provisions in Washington's sentencing scheme allowing imposition of exceptional sentences based on findings by the court that aggravating factors existed. In that context, the court stated:

Our commitment to Apprendi in this context reflects not just respect for longstanding precedent, but the need to give intelligible content to the right of jury trial. That right is no mere procedural formality, but a fundamental reservation of power in our constitutional structure. Just as suffrage ensures the people's ultimate control in the legislative and executive branches, jury trial is meant to ensure their control in the judiciary. Apprendi carries out this design by ensuring that the judge's authority to sentence derives wholly from the jury's verdict.[¹⁰¹ ]

¶ 67 Apprendi and Blakely reinforce the long-standing principles that the jury is the fact finder and judges derive their sentencing authority from the verdict. Apprendi and Blakely have confirmed, not changed, the roles of judge and jury. The court did not err in instructing the jury in Holzknecht's case that it had no role in his sentencing.

Jury Instruction Defining Assault

¶ 68 Holzknecht contends the court improperly defined “assault” in its jury instructions, thereby violating his due process rights and his right to a jury trial. Holzknecht did not take exception to the instruction.

¶ 69 Holzknecht does not explain how the alleged erroneous definitional instruction denied him the right to a jury trial. As to his due process challenge, the rule is that jury instructions, read as a whole, must correctly tell the jury of the applicable law, must not be misleading, and must permit the defendant to present his theory of the case.¹⁰² The “ ‘constitution only requires the jury be instructed as to each element of the offense charged, and the failure of the trial court to further define one of those elements is not within the ambit of the constitutional rule.”¹⁰³ Thus, when a defendant raises a due process challenge to a definitional instruction for the first time on appeal, the court will address it only if the alleged error is of constitutional magnitude and is manifest.¹⁰⁴

¶ 70 The jury was instructed that in order to convict, it had to find that on or about September 27, 2007 through November 30, 2007, Holzknecht committed three distinct crimes of assault in the second degree against Grace, that he was 18 years of age or older, that Grace was under the age of 13, and that the acts occurred in the state of Washington. The jury was further instructed that “[a] person commits the crime of assault in the second degree when he or she intentionally assaults another and thereby recklessly inflicts substantial bodily harm.”¹⁰⁵ Finally, the jury was instructed that “[a]n assault is an intentional touching or striking of another person that is harmful or offensive regardless of whether any physical injury is done to the person. A touching or striking is offensive if the touching would offend an ordinary person who is not unduly sensitive.”¹⁰⁶

¶ 71 Holzknecht argues this definition erroneously failed to include the requirement that he intended the touching to be harmful or offensive. Holzknecht is mistaken. The intent required for assault by battery, as charged here, is intent to do the act, that is, the touching.

¶ 72 Assault is not statutorily defined, so courts apply the common law definition of criminal assault.¹⁰⁷ This definition is three-fold and includes the common law definitions of attempted battery, battery, and common law assault: “(1) an attempt, with unlawful force, to inflict bodily injury upon another; (2) an unlawful touching with criminal intent; and (3) putting another in apprehension of harm whether or not the actor intends to inflict or is incapable of inflicting that harm.”¹⁰⁸ For purposes of this case, the applicable type of assault is assault by battery and the applicable definition is “unlawful touching with criminal intent.”

¶ 73 Holzknecht argues that because assault by battery has evolved from the civil tort of battery, the civil definition should apply, that civil battery is the intentional infliction of harmful bodily contact, and that the actor must either intend to bring about the harmful or offensive contact, or know with substantial certainty that the harm will occur.

¶ 74 No court in Washington has adopted this argument, and we reject it. The common law of criminal assault has evolved, in part, from the common law of torts.¹⁰⁹ It has also evolved independently.¹¹⁰ Under the common law of criminal assault as reflected in our Supreme Court precedent, assault by battery is an intentional touching that is unlawful.¹¹¹ Unlike the other two forms of criminal assault, which require specific intent to inflict harm or cause apprehension,¹¹² assault by battery merely requires intent to do the physical act constituting the assault, that is, the unlawful touching.¹¹³ Touching is unlawful when it is without privilege or consent and is harmful or offensive.¹¹⁴

¶ 75 The definitional instruction here correctly reflects the mens rea requirement for assault by battery. The instruction also correctly states that the touching must be harmful or offensive.

¶ 76 Holzknecht nevertheless argues the failure to define assault as an unlawful touching impermissibly relieved the State of its burden to prove that the touching was without consent or privilege. We reject this argument. In other contexts, courts have criticized jury instructions that use the term “unlawful” without defining it.¹¹⁵ Moreover, consent has been traditionally treated as a defense.¹¹⁶ This approach is consistent with the rule that the definition of battery is not an element of the crime when the State charges assault by battery, and therefore no definition of assault need be given to the jury.¹¹⁷

¶ 77 The instruction was a correct statement of the law and did not relieve the State of its burden of proof as to any of the essential elements of the crime charged. The challenge is therefore not of constitutional magnitude, and we will not address it for the first time on appeal.

Sufficiency of the Evidence

¶ 78 Finally, Holzknecht challenges the sufficiency of the evidence in his case. He argues there was insufficient evidence that he rather than any of the other people who helped care for Grace caused her injuries, or that he acted with more than negligence. Evidence is sufficient to support a conviction if, viewed in the light most favorable to the prosecution, it permits any rational trier of fact to find the essential elements of the crime beyond a reasonable doubt.¹¹⁸

¶ 79 It is undisputed that Holzknecht handled Grace in a rough manner, and there was no evidence suggesting anybody else mistreated Grace. Amy repeatedly asked him to slow down and treat Grace more gently. In the defecating incident, he handled Grace so roughly as to cause immediate bruising, prompting him to admit he thought he had hurt her. According to the medical witnesses, Grace's fractures could not have been the result of lifting her up by one leg. Rather, a significant amount of force was applied on more than one occasion. This is both evidence of criminal activity and evidence that the person causing the force both knew of and disregarded a substantial risk that harm would occur. The evidence was sufficient to support the convictions. Affirmed.

FOOTNOTES

1.  Report of Proceedings (Nov. 18, 2008) at 79.

2.  Id. at 129.

3.  Id. at 82.

4.  Id. at 108.

5.  Id. at 131-32.

6.  Id. at 143.

7.  Id.

8.  RAP 2.5(a)(3); State v. Scott, 110 Wn.2d 682, 686-87, 757 P .2d 492 (1988).

9.  State v. O'Hara, 167 Wn.2d 91, 98, 217 P.3d 756 (2009) (citing Scott, 110 Wn.2d at 687, 689-91).

10.  Id. at 99.

11.  Id.

12.  Id (alteration in original) (quoting State v. Kirkman, 159 Wn.2d 918, 935, 155 P.3d 125 (2007)).

13.  Scott, 110 Wn.2d at 688.

14.  State v. Brown, 147 Wn.2d 330, 341, 58 P.3d 889 (2002).

15.  O'Hara, 167 Wn.2d at 99-100.

16.  Id. at 99 (quoting State v. McFarland, 127 Wn.2d 322, 333, 899 P.2d 1251 (1995)).

17.  Clerk's Papers at 69.

18.  Clerk's Papers at 72.

19.  Clerk's Papers at 77.

20.  Clerk's Papers at 78.

21.  Clerk's Papers at 79.

22.  Clerk's Papers at 80.

23.  State v. Gerdts, 136 Wn.App. 720, 726, 150 P.3d 627 (2007) (quoting RAP 2.5(a)(3)).

24.  131 Wn.App. 194, 126 P.3d 821 (2005).

25.  Id. at 203-04.

26.  Id. at 196.

27.  Id. at 200 (emphasis omitted).

28.  Id. at 202 (emphasis omitted).

29.  Id. at 203.

30.  Id. This court considered an identical challenge in State v. Atkins, No. 64975-2-I, 2010 WL 3002051 (Wash. May 24, 2010), and held the knowledge instruction created an impermissible mandatory presumption, which in that case was harmless under Yeatts v. Evatt, 500 U.S. 391, 111 S.Ct. 1884, 114 L.Ed.2d 432 (1991).

31.  140 Wn.App. 858, 166 P.3d 1268 (2007).

32.  Id. at 862.

33.  Id. at 863-64.

34.  Id. at 865.

35.  Id. at 866-68.

36.  Id. at 868.

37.  136 Wn.App. 720, 150 P.3d 627 (2007).

38.  Id. at 728.

39.  Id. at 727.

40.  Id. at 728 (emphasis omitted).

41.  11 Washington Practice: Washington Pattern Jury Instructions: Criminal 10.02, at 150 (2d ed. 1994) (WPIC).

42.  11 Washington Practice: Washington Pattern Jury Instructions: Criminal 10.02, at 206 (3rd ed. 2008) (WPIC) (alterations in original).

43.  Id. cmt. at 207, 208.

44.  11 WPIC 10.03, at 153 (1994).

45.  11 WPIC 10.03, at 209 (2008) (alterations in original).

46.  152 Wn.App. 632, 217 P.3d 354 (2009).

47.  Id. at 645.

48.  Id. at 645-46 (quoting 11 WPIC 10.03, at 211 (2008)).

49.  168 Wn.2d 306, 230 P.3d 142 (2010).

50.  Id. at 315-16.

51.  Id. at 316-17.

52.  Id. at 317 n. 7.

53.  State v. Finch, 137 Wn.2d 792, 810, 975 P.2d 967 (1999).

54.  State v. Dow, 168 Wn.2d 243, 248, 227 P.3d 1278 (2010).

55.  Id.

56.  Id. at 249.

57.  State v. Aten, 130 Wn.2d 640, 655-56, 927 P.2d 210 (1996).

58.  Dow, 168 Wn.2d at 249.

59.  RCW 10.58.035.

60.  Report of Proceedings (RP) (Nov. 17, 2008) at 22.

61.  State v. Powell, 126 Wn.2d 244, 257, 893 P.2d 615 (1995) (quoting State v. Carlson, 61 Wn.App. 865, 875, 812 P.2d 536 (1991)).

62.  Holzknecht thus waived his challenges to the belated entry of the written order and the adequacy of the findings.

63.  168 Wn.2d 243, 227 P.3d 1278 (2010).

64.  Id. at 250.

65.  Id. at 249-50.

66.  Id. at 250.

67.  RCW 10.58.035 (emphasis added).

68.  Id.

69.  Washington State Physicians Ins. Exch. & Ass'n v. Fisons Corp., 122 Wn.2d 299, 344, 858 P.2d 1054 (1993) (emphasis omitted).

70.  Clerk's Papers at 80.

71.  The Warsaw Convention is an international convention which regulates liability for international carriage of persons, luggage or goods performed by aircraft for reward.

72.  Olympic Airways v. Husain, 540 U.S. 644, 649, 124 S.Ct. 1221, 157 L.Ed.2d 1146 (2004) (alterations in original) (citing Air France v. Saks, 470 U.S. 392, 400, 105 S.Ct. 1338, 84 L.Ed.2d 289 (1985)). Contrary to the State's position, there is nothing in this quote suggesting that these definitions of “accident” are specific to the Warsaw Convention. In fact, the court clearly discusses the usual understanding of the term.

73.  RP (Nov. 19, 2008) at 251.

74.  WAC 388-15-009.

75.  See Webster's Third New International Dictionary of the English Language (3d ed.1993) (“abuse” defined as “physically harmful treatment”); see also Black's law Dictionary 11 (9th ed.2009) (“child abuse” defined as “[i]ntentional or neglectful physical or emotional harm inflicted on a child”).

76.  State v. Kronich, 160 Wn.2d 893, 900, 161 P.3d 982 (2007).

77.  State v. O'Hara, 167 Wn.2d 91, 99, 217 P.3d 756 (2009).

78.  U.S. Const. amend. VI.

79.  541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).

80.  Id. at 53-54.

81.  Id. at 56.

82.  Melendez-Diaz v. Massachusetts, --- U.S. ----, 129 S.Ct. 2527, 2533 n. 2, 174 L.Ed.2d 314 (2009).

83.  The State argues that the confrontation clause is not implicated because the other reports were introduced to explain Dr. Sugar's conclusion that Grace's injuries were not caused by a medical condition and not for the truth of the matter asserted. See Crawford, 541 U.S. at 59 n. 9 (confrontation clause does not bar use of testimonial statements for some purpose other than establishing the truth of the matter asserted). In light of our holding, we find it unnecessary to address this argument.

84.  RP (Nov. 18, 2008) at 97.

85.  State v. Babich, 68 Wn.App. 438, 446, 842 P.2d 1053 (1993).

86.  State v. Lopez, 95 Wn.App. 842, 857, 980 P.2d 224 (1999).

87.  State v. Yoakum, 37 Wn.2d 137, 144, 222 P.2d 181 (1950).

88.  Babich, 68 Wn.App. at 444 (alteration in original) (quoting United States v. Silverstein, 737 F.2d 864, 868 (10th Cir.1984)).

89.  State v. Miles, 139 Wn.App. 879, 886, 162 P.3d 1169 (2007).

90.  Id. at 885 (quoting State v. McKenzie, 157 Wn.2d at 52, 134 P.3d 221 (2006)).

91.  Id.

92.  Lopez, 95 Wn.App. at 855.

93.  See id. at 855-56; Babich, 68 Wn.App. at 445-46.

94.  See Yoakum, 37 Wn.2d at 138-41, 144 (alleged statements concerned the circumstances of defendant's stabbing of the victim); Miles, 139 Wn.App. at 882-84, 887-89 (prosecutor's questions tended to discredit defendant's defense that he was incapacitated at the time of the relevant events and thus could not commit the offense).

95.  Specifically, the jury was instructed, “You have nothing whatever to do with any punishment that may be imposed in case of a violation of the law. You may not consider the fact that punishment may follow conviction except insofar as it may tend to make you careful.” Clerk's Papers at 57.

96.  Shannon v. United States, 512 U.S. 573, 579, 114 S.Ct. 2419, 129 L.Ed.2d 459 (1994) (quoting Rogers v. United States, 422 U.S. 35, 40, 95 S.Ct. 2091, 45 L.Ed.2d 1 (1975)).

97.  Id.

98.  530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).

99.  542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).

100.  Apprendi, 530 U.S. at 490.

101.  Blakely, 542 U.S. at 305-06 (citations omitted).

102.  State v. O'Hara, 167 Wn.2d 91, 105, 217 P.3d 756 (2009).

103.  Id. (quoting State v. Fowler, 114 Wn.2d 59, 69-70, 785 P.2d 808 (1990)).

104.  Id. at 105, 108.

105.  Clerk's Papers at 69.

106.  Clerk's Papers at 70.

107.  State v. Stevens, 158 Wn.2d 304, 311, 143 P.3d 817 (2006).

108.  Id.

109.  See State v. Byrd, 125 Wn.2d 707, 712-13, 887 P.2d 396 (1995) (explaining that assault by putting another in apprehension of harm whether or not the actor intends to inflict or is incapable of inflicting that harm is thought to have been assimilated into criminal law from the law of torts).

110.  See State v. Frazier, 81 Wn.2d 628, 630-31, 503 P.2d 1073 (1972) (explaining difference between criminal assault by attempted battery and the common law tort of assault).

111.  See Stevens, 158 Wn.2d at 311-12 (majority), 313-14 (Madsen, J., dissenting).

112.  State v. Eastmond, 129 Wn.2d 497, 500, 919 P.2d 577 (1996).

113.  See Stevens, 158 Wn.2d at 312 (majority), 314 (Madsen, J., dissenting); State v. Keend, 140 Wn.App. 858, 867, 166 P.3d 1268 (2007); State v. Hall, 104 Wn.App. 56, 62, 14 P.3d 884 (2000); State v. Daniels, 87 Wn.App. 149, 155, 940 P.2d 690 (1997); State v. Esters, 84 Wn.App. 180, 184-85, 927 P.2d 1140 (1996).

114.  Stevens, 158 Wn.2d at 312 (majority), 315 (Madsen, J., dissenting).

115.  See State v. Hardy, 44 Wn.App. 477, 483-84, 722 P.2d 872 (1986) (aggressor instruction for second degree murder); State v. Arthur, 42 Wn.App. 120, 122-25, 708 P.2d 1230 (1985) (aggressor instruction for second degree assault).

116.  See State v. Hiott, 97 Wn.App. 825, 826-27, 987 P.2d 135 (1999); State v. Shelley, 85 Wn.App. 24, 929 P.2d 489 (1997); see also 11 Washington Practice: Washington Pattern Jury Instructions: Criminal 35.50 note on use at 550 (3rd ed. 2008) (“[T]he circumstances in which the jury is properly instructed regarding the defense of consent are rather limited, outside the context of sexual assault.”).

117.  Daniels, 87 Wn.App. at 156.

118.  State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).

ELLINGTON, J.

WE CONCUR: SCHINDLER and BECKER, JJ.