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987 P.2d 135 Page 1
(Cite as: 97 Wash.App. 825, 987 P.2d 135)
Court of Appeals of Washington,
Division 2.
STATE of Washington, Respondent,
v.
Richard V. HIOTT, Appellant.
No. 23337-1-II.
Nov. 5, 1999.
987 P.2d 135, 97 Wash.App. 825
Juvenile was convicted in the Superior Court, Thurston County, Paula Casey, J., of assault in the third degree.
Juvenile appealed. The Court of Appeals, Armstrong, A.C.J., held that victim’s consent to game in which
he and
juvenile shot at each other with BB guns did not constitute a defense to assault charge.
Affirmed.
**135 *826 Jodi R. Backlund, Manek R. Mistry, Backlund & Mistry,
(Court Appointed), Olympia, for Appellant.
Lisa Michele Kartes, Thurston Co. Deputy Pros. Atty., Olympia, for Respondent.
ARMSTRONG, A.C.J.
Richard Hiott appeals his conviction in juvenile court of assault in the third degree. RCW 9A.36.031(1)(d),
(f). The
assault occurred during a game in which Hiott and his friend, Jose, were shooting at each other with BB guns.
Jose
was hit in the eye and lost his eye as a result. Hiott was charged **136
with assault in the third degree; the trial court
found him guilty, ruling that: “[a]t no time did either consent to be injured by the other, but both boys
were engaged
in a very reckless form of play ... [and] this mutual play has lead [sic] to a crime.”
The question is whether the victim’s consent to the game is a defense to the assault charge. We hold it
is not, and
accordingly affirm.
ANALYSIS
A. Did the trial court apply the proper legal standard?
The trial court orally ruled that “[a]t no time did either consent to be injured by the other.”
Hiott contends that the
court applied the wrong legal standard. He argues that the question is not whether Jose consented to the injury,
but
to the game activity. We need not address this, however, because we hold that consent is not available as a
defense
where the game is shooting at another with a BB gun.
B. Is consent a defense?
Consent can be a defense to a criminal assault *827 charge. State v. Simmons, 59 Wash.2d 381, 388, 368 P.2d 378
(1962) (the defense was applied in a sexual assault charge). Most recently, in State v. Shelley, 85 Wash.App. 24, 929
P.2d 489, review denied, 133
Wash.2d 1010, 946 P.2d 402 (1997), Division One held that consent can be a defense
to an assault occurring during an athletic contest. During a game of “pickup” basketball, Shelley
punched another
player, breaking his jaw. Division One reviewed the use of consent as a defense and extended its use beyond
that of
sexual assault, adopting the approach of the Model Penal Code. [FN1] Under Shelley, consent can be a defense if
“the conduct of defendant constituted foreseeable behavior in the play of the game” and the injury
“occurred as a byproduct
of the game itself.” Shelley, 85 Wash.App. at 31-32, 929 P.2d 489. In addition, consent is a defense only if
the game is a lawful athletic contest, competitive sport, or other concerted activity not forbidden by law.
Shelley, 85
Wash.App. at 34, 929 P.2d 489. Cf. State v. Dejarlais, 136 Wash.2d 939, 969 P.2d 90 (1998) (consent not a defense
to charge of violating a domestic violence protection order).
FN1. The court in Shelley adopted
the approach of the Model Penal Code, which provides that: “the
conduct and the injury are reasonably foreseeable hazards of joint participation in a lawful athletic contest
987 P.2d 135 Page 2
(Cite as: 97 Wash.App. 825, 987 P.2d 135)
or competitive sport or other concerted activity not forbidden by law.” Shelley, 85 Wash.App. at 31, 929
P.2d 489 (citing the MODEL PENAL CODE AND COMMENTARIES § 2.11 at 393 (Official Draft and
Revised Comments 1985)).
Hiott argues that Jose consented to the game, Hiott’s conduct was foreseeable behavior in the game, and
the injury
resulted from the game itself. Further, according to Hiott, the game they were playing “is within the
limits of games
for which society permits consent.” Hiott compares the boys’ shooting of BB guns at each other to
dodgeball,
football, rugby, hockey, boxing, wrestling, “ultimate fighting,” fencing, and “paint-ball.”
We disagree.
The games Hiott uses for comparison, although capable of producing injuries, have been generally accepted by
society as lawful athletic contests, competitive sports, or concerted activities not forbidden by law. And these
games
carry with them generally accepted rules, at least some of which are intended to prevent or minimize injuries.
In
addition, *828 such games commonly
prescribe the use of protective devices or clothing to prevent injuries.
Shooting BB guns at each other is not a generally accepted game or athletic contest; the activity has no generally
accepted rules; and the activity is not characterized by the common use of protective devices or clothing. Cf. Ritchie-
Gamester v. City of Berkley, 461 Mich. 73, 597 N.W.2d 517 (1999) (ice
skater at a city-owned ice arena sued for
negligence after being injured by another skater; court addressed the standard of care in recreational activities
and
games, applying the “everyday reality” of participating in a recreational activity by adhering to
the rules defining the
sport).
Moreover, consent is not a valid defense if the activity consented to is against public policy. Helton v. State, 624
N.E.2d 499, 514 (Ind.Ct.App.1993). Thus, a child **137 cannot consent to hazing, a gang member cannot consent to
an initiation beating, and an individual cannot consent to being shot with a pistol. People v. Lenti, 44 Misc.2d 118,
253 N.Y.S.2d 9, 15 (1964); Helton, 624 N.E.2d at 515; State v. Fransua, 85
N.M. 173, 510 P.2d 106, 58 A.L.R.3d
656 (1973). In Fransua, the
New Mexico court held that consent was not a defense to aggravated battery,
recognizing that criminal statutes are enacted to protect citizens and to prevent breaches of the public peace.
Fransua, 510 P.2d at 107 (citation omitted). [FN2] Assaults in general
are breaches of the public peace. Shelley, 85
Wash.App. at 29, 929 P.2d 489. And we consider shooting at another person with a BB gun a breach of the public
peace and therefore, against public policy. We conclude that the trial court did not err in refusing to consider
Jose’s
consent as a defense.
FN2. Washington also enacts criminal statutes for the purpose of preventing harm to public interests. RCW
9A.04.020(1)(d).
Affirmed.
SEINFELD, J., and HUNT, J., concur.
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