¶29
Hunt, J.(dissenting) — I respectfully dissent. I disagree with the majority’s holding that instruction 8 is confusing and that it relieved the State of its burden of proving an element of the offense by conflating the knowledge and intent elements of the crime. I would uphold the trial court’s giving this instruction because (1) Goble did not object to it and (2) the record does not show that the instruction impermissibly relieved the State of its burden of proving knowledge beyond a reasonable doubt. I would affirm.
¶30 Instruction 8 provided:
A person knows or acts knowingly or with knowledge when he or she is aware of a fact, circumstance or result described by law as being a crime, whether or not the person is aware that the fact, circumstance or result is a crime.
If a person has information which would lead a reasonable person in the same situation to believe that facts exist which are described by law as being a crime, the jury is permitted but not required to find that he or she acted with knowledge.
Acting knowingly or with knowledge also is established if a person acts intentionally.
Clerk’s Papers at 44 (emphasis added).
¶31 In my view, the italicized portion of instruction 8 did not direct the jury to presume knowledge of Riordan’s law enforcement status from Goble’s intentional grabbing of Riordan’s throat. Although the last line of this instruction is not the epitome of clarity, it merely explains that doing *205some act “intentionally” subsumes doing that act “knowingly.” Applied here, the reference to acting “intentionally” relates to Goble’s grabbing of Riordan, not to Goble’s knowledge of the Riordan’s law enforcement status. I cannot agree with the majority’s reasoning that this last line of instruction 8 somehow required the jury automatically to find that Goble knew Riordan was an officer when it found that Goble had intentionally grabbed him.
¶32 Moreover, failure to include the exact wording of RCW 9A.08.010(l)(b)8 in the knowledge instruction did not relieve the State of its burden to prove that Goble knew Riordan was a law enforcement officer.9 “ ‘[F]ailure to give a definitional instruction is not failure to instruct on an essential element.’ ” State v. Scott, 110 Wn.2d 682, 690, 757 P.2d 492 (1988) (alteration in original) (quoting State v. Tarango, 105 N.M. 592, 734 P.2d 1275, 1282 (Ct. App. 1987), overruled on other grounds by Zurla v. State, 109 N.M. 640, 789 P.2d 588 (1990)).10 Here, the “to-convict” assault instruction clearly explained that, in order to convict, the jury had to find beyond a reasonable doubt that Goble knew Riordan was a law enforcement officer. Instruction 8’s lack of a verbatim recitation of the statutory definition of knowledge did not relieve the State of its burden to prove this element.
¶33 Finally, in my view, the second paragraph of instruction 8 did not create an improper permissible inference that relieved the State of its burden to prove Goble knew *206that Riordan was a law enforcement officer. “When a permissive inference is ‘only part of the State’s proof supporting an element and not the “sole and sufficient” proof of such element, due process is not offended if the prosecution shows that the inference more likely than not flows from the proven fact.’ ” State v. Sandoval, 123 Wn. App. 1, 4-5, 94 P.3d 323 (2004) (emphasis added) (quoting State v. Deal, 128 Wn.2d 693, 699-700, 911 P.2d 996 (1996) (citing State v. Brunson, 128 Wn.2d 98, 107, 905 P.2d 346 (1995))).
¶34 Evidence that Goble knew of Riordan’s law enforcement status was not limited to an inference based on Riordan’s wearing a uniform. Stamper testified that Goble told him he (Goble) had interfered with Riordan to keep Riordan from shooting his grandson with a taser. Goble’s knowledge that Riordan was wielding a taser to subdue Goble’s grandson gave rise to an inference that Goble knew Riordan was acting in his capacity as a police officer. Additionally, Riordan testified that he had several, previous, nonconfrontational social contacts with Goble while Riordan was in uniform, such that Goble knew from these other contacts that Riordan was a police officer.11
¶35 The State had to show that the inference of Goble’s knowledge of Riordan’s law enforcement status “ ‘more likely than not flow[ed] from the proven fact.’ ” Sandoval, 123 Wn. App. at 5 (quoting Deal, 128 Wn.2d at 700). In my view, the evidence properly supported this inference, and the challenged instruction did not relieve the State of its burden of proving knowledge.12
¶36 Again, I would affirm.
RCW 9A.08.010(l)(b) provides:
A person knows or acts knowingly or with knowledge when:
(i) he is aware of a fact, facts, or circumstances or result described by a statute defining an offense; or
(ii) he has information which would lead a reasonable man in the same situation to believe that facts exist which facts are described by a statute defining an offense.
“The requirements of due process usually are met when the jury is informed of all the elements of an offense and instructed that unless each element is established beyond a reasonable doubt the defendant must be acquitted.” State v. Scott, 110 Wn.2d 682, 690, 757 P.2d 492 (1988).
See also Rohlfing v. State, 612 S.W.2d 598, 602-03 (Tex. Crim. App. 1981).
Although both sides presented conflicting testimony on this point, witness credibility is for the jury.
I agree with the majority that we should not reach the merits of Goble’s arguments about the jury’s power to nullify the verdict because he failed to propose such an instruction, to object to the instructions given, or to allege any prejudice.