State v. Fernandez-Medina, FERNANDEZ-MEDIN

• Decision Date: 29 January 1999
• Docket Number: A,No. 22069-5-II,FERNANDEZ-MEDIN,22069-5-II
• Citation: 94 Wn.App. 263,971 P.2d 521
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Roilandppellant.

Page 521

94 Wn.App. 263

971 P.2d 521

STATE of Washington, Respondent, v. Roiland FERNANDEZ-MEDINA, Appellant.

No. 22069-5-II.

Court of Appeals of Washington,

Division 2.

Jan. 29, 1999.

Publication Ordered Feb. 12, 1999.

Mary K. High, (Court Appointed), Tacoma, WA, for Appellant.

Michael L. Sommerfeld, Pierce Cnty Prosec Office, Tacoma, WA, for Respondent.

HOUGHTON, C.J.

Roiland Fernandez-Medina (Fernandez) appeals a first degree assault conviction, arguing that the trial court erred by refusing his proposed instructions on the lesser included offense of second degree assault. We affirm.

FACTS

On September 29, 1996, Fernandez got into an argument with his girlfriend, Ann Carpenter, with whom he was living. Fernandez pushed Carpenter and threatened to kill her. Friends of Carpenter's, including Dorothy Perkins, intervened. Carpenter told Fernandez to gather his things and leave her apartment.

Carpenter and Perkins went a short distance to another apartment, which was occupied by Keith Clark and his friend, Wayne Butler. Meanwhile, Fernandez had returned and parked his car. He knocked on the door of Clark's apartment. When Butler cracked open the door and told Fernandez to leave, Fernandez kicked the door aside and shot Butler, then entered the apartment and shot him again.

Carpenter ran to the bathroom when she heard the shots. Fernandez chased her, firing once but missing. He turned next toward Perkins, who was cowering near the living room couch. With Carpenter watching from the bathroom door, Fernandez pointed a gun at Perkins from a distance of two feet and seemed to pull the trigger. Perkins had closed her eyes, but she heard the gun make a "clicking sound." The gun did not fire, however. Fernandez then left the apartment.

The State charged Fernandez with the attempted murder of Butler and Perkins, and in the alternative, with first degree assault upon them both.

The police recovered four spent .380 shell casings from the apartment. Fernandez called an expert witness to demonstrate to the jury that many manufacturers produce guns that can fire a .380 bullet, and many such guns can produce a "clicking sound" without a trigger pull. But in his own testimony Fernandez presented an alibi defense, saying that after Carpenter ordered him out and he removed his belongings from her apartment, he went to a friend's house in Tillicum and slept. The next morning, he went to Seattle to look for a job. He denied having fired a gun at anybody at Clark's apartment. In other words, he was not the person who shot Butler and pointed a gun at Perkins, because he was not there. The jury did not believe him and convicted him of both assaults.

Fernandez appeals the conviction for assaulting Perkins (but does not appeal the conviction for assaulting Butler). With respect to the Perkins charge, Fernandez proposed lesser included offense instructions on second degree assault. He took exception to the trial court's refusal to give those instructions. On appeal, he revisits the instructional issue, arguing that he was entitled to an instruction on second degree assault because he presented evidence that it, rather than first degree assault, was committed.

ANALYSIS

In Herring v. Department of Social and Health Servs., 81 Wash.App. 1, 22-23, 914 P.2d 67 (1996), we summarized the law concerning the giving of jury instructions:

We review the trial court's jury instructions under the abuse of discretion standard. A trial court does not abuse its discretion in instructing the jury if the instructions: (1) permit each party to argue its theory of the case; (2) are not misleading; and (3) when read as a whole, properly inform the trier of fact of the applicable law.

(citations omitted). The trial court has similar discretion whether to use a party's proposed instruction. Erickson v. Robert F. Kerr, M.D., P.S., Inc., 69 Wash.App. 891, 905, 851 P.2d 703 (1993), modified on other grounds, 125 Wash.2d 183, 883 P.2d 313 (1994). A criminal defendant is entitled to jury instructions that accurately state the law, permit him to argue his theory of the case, and are supported by the evidence. State v. Staley, 123 Wash.2d 794, 803, 872 P.2d 502 (1994).

The last point, that the evidence must support the proposed instruction, is what defeats Fernandez on appeal. A defendant is entitled to an instruction on a lesser included offense if (1) each element of the lesser crime is a necessary element of the charged crime, and (2) the evidence supports an inference that the lesser crime--and only the lesser crime--was committed. State v. Hurchalla, 75 Wash.App. 417, 421-23, 877 P.2d 1293 (1994). As to this second prong, there must be some affirmative evidence from which the jury could conclude that the defendant committed the lesser included crime. State v. Fowler, 114 Wash.2d 59, 67, 785 P.2d 808 (1990). The defense of alibi, which denies that the defendant committed the crime, is a complete defense to the charge. See State v. Riker, 123 Wash.2d 351, 367, 869 P.2d 43 (1994). If the jury believed Fernandez's alibi defense, it would have had to find him not guilty of any offense because he simply was not...