Appeals court rules against former Tacoma police accused of telling woman to beat boy, 9
A case against two Tacoma police officers accused of telling a woman to beat her 9-year-old grandson with a belt should not have been dismissed, an appellate court said Tuesday.
Prosecutors charged Jesse Jahner and Damion Birge with third-degree child assault and official misconduct.
Charging papers said the officers responded to a 911 call that involved the boy, who had the intellectual capacity of a 4-year-old. Birge allegedly told her to “beat the demons” out of the child and showed the woman how to use the belt by hitting it on a table.
Jahner allegedly held the boy down as the grandmother hit the child. They allegedly told her they wouldn’t respond to her home in the future if she didn’t.
Pierce County Superior Court Judge Jerry Costello granted Birge’s and Jahner’s motions to dismiss those charges in 2019, and the state appealed.
The new ruling from a three-judge panel of Division II of the Washington State Court of Appeals reversed that dismissal and remanded the case back to the trial court for further proceedings.
“Viewing the evidence in the light most favorable to the State, the State has presented sufficient evidence to establish a prima facie case of guilt of both third degree assault and official misconduct, even if some facts are in dispute,” Judge Rebecca Glasgow wrote for the unanimous panel. “... We reverse the trial court’s dismissal of both charges and remand for proceedings consistent with this opinion.”
The panel also rejected arguments from the defendants that the official misconduct statute is too vague and too broad to be constitutional.
“Obviously we’re disappointed,” attorney David Allen, who represents Jahner, said Tuesday. “... We’re ready to go back to trial whenever the court tells us to.”
Asked if they expected to ask the state Supreme Court for review, Allen said: “It’s possible, but in a case like this it might just be a waste of time. ... Officer Jahner very much wants to get this behind him, and we feel we have a very strong case at trial.”
Attorney J.C. Becker, who represented Birge and retired last year, said via email Tuesday: “... the decision was just issued today and we have yet to discuss it. It does not say they were guilty, just that there was ‘enough’ evidence for a trial.”
Jahner and Birge were fired by the Tacoma Police Department following an internal investigation.
Court records identified the grandmother by the initials RC and the child by the initials KJC.
“The trial court reasoned that, as a matter of law, Birge and Jahner could not have intended RC to assault KJC because they informed her about her rights to use lawful physical discipline on KJC under RCW 9A.16.100,” part of the appellate court’s analysis said. “But the witness statements showed that Birge and Jahner told RC to use a belt and showed her how to use it without cautioning her how hard to strike KJC.”
It goes on to say: “Birge told RC to ‘beat the demons out of [KJC]’ and suggested that RC resort to hitting him in his sleep because he was squirming. They showed RC how to hit KJC by striking the belt on a table. Jahner reportedly held (the child) down throughout the episode, making it possible for RC to strike KJC at least 20 times.”
Court records said the boy, who was cognitively disabled and mentally ill, had locked two social workers out of the house in 2017 while they watched him as the grandmother ran an errand. He screamed, broke windows, threw dishes and held a knife. One of the social workers called 911 out of concern for the boy’s safety. Then the grandmother returned home, and got the boy to drop any knives.
“KJC was sitting calmly on the couch when two Tacoma Police Department officers, Birge and Jahner, arrived,” Glasgow wrote in the opinion, signed by Judges Rich Melnick and Lisa Worswick. “Between the officers’ arrival and when they transported KJC to the hospital, RC hit KJC on the buttocks, back, and arms with a looped over belt at least 20 times in the presence of (social workers). The record contains conflicting descriptions about who instigated the spanking with the belt and how it occurred.”
The grandmother and social workers said the officers “insisted that RC hit KJC with a belt even though RC resisted, and the officers threatened to not order an ambulance or help RC in the future unless she hit KJC with the belt,” part of the opinion said. “... Birge and Jahner maintained that they merely informed RC that she had a legal right to physically discipline KJC. They stated it was RC’s idea to hit KJC with a belt.”
The boy was taken by ambulance to a hospital for mental health treatment and cuts on his hands, and doctors later noted bruising on his back, sides and arms, court records said.
Part of the appellate court’s analysis said: “Viewing the discipline in light of the circumstances, a trier of fact could rationally conclude that it was not reasonable to hit a nine-year-old child with a belt more than 20 times hard enough to leave bruises when he had cognitive disabilities, developmental delays, oppositional defiance disorder, posttraumatic stress disorder, fetal alcohol spectrum disorder, attention deficit hyperactivity disorder, and psychosis.”
The Thurston County Prosecutor’s Office handled the case to avoid any conflict of interest.
