State v. Bowen, 1100--II

• Citation: 12 Wn.App. 604,531 P.2d 837
• Decision Date: 16 January 1975
• Docket Number: No. 1100--II,1100--II
• Parties: The STATE of Washington, Respondent, v. Robert S. BOWEN, Appellant.
• Court: Court of Appeals of Washington

Page 604

12 Wn.App. 604

531 P.2d 837

The STATE of Washington, Respondent, v. Robert S. BOWEN, Appellant.

No. 1100--II.

Court of Appeals of Washington, Division 2.

Jan. 16, 1975.

J. Rex Behrhorst, Port Angeles, for appellant.

S. Brooke Taylor, Pros. Atty., Port Angeles, for respondent.

ARMSTRONG, Chief Judge.

The defendant, Robert S. Bowen appeals from a jury conviction of rape. The relevant facts are these. Bowen was living at a motel where the victim was employed. After having been acquainted with Bowen for one and one-half weeks, the victim had a social date with her fiance, her fiance's sister and Bowen. The next morning at four o'clock, the emergency doorbell at the motel office rang, and the victim went to the door. The assailant pushed his way in, struck her several times, knocked her to the floor and sexually assaulted her. To her inquiry as to why he was raping her, he replied, 'because you shunned me.' The next day she identified Bowen as her assailant. The two companions of the night before the attack testified that Bowen had consumed several alcoholic drinks that evening, and had seemed upset when the victim rejected his amorous overtures.

There are two important issues raised by this appeal. First, is second degree assault a lesser included offense of the crime of rape? We hold that it is and that therefore the instruction to the jury so stating was proper. Second, does a judge other than the one who conducted the trial have jurisdiction to impose sentence? We hold that he does. Additionally, Bowen challenges certain conduct of the trial judge, the admission of certain rebuttal testimony and an instruction on motive.

Is assault in the second degree a lesser included offense of rape? The trial judge instructed the jury (instruction 7):

The crime of Rape includes also the lesser crime of Assault in the Second Degree, so if the State has failed to establish the guilt of the defendant of the offense of Rape, it will be your duty to consider whether or not the defendant is guilty, under the evidence, of the crime of Assault in the Second Degree.

It is clear that a jury may be instructed on and a defendant convicted of a lesser included offense where all the elements of the included offense are necessary elements of the offense charged, even if the lesser included offense is not charged. State v. Olds, 39 Wash.2d 258, 235 P.2d 165 (1951); State v. Bishop, 6 Wash.App. 146, 491 P.2d 1359 (1971); State v. East, 3 Wash.App. 128, 474 P.2d 582 (1970); RCW 10.61.006. The question squarely facing us, then, is whether second degree assault is a lesser included offense of the crime of rape. The courts of our state have never resolved this precise question. However, the case law and logic compel the conclusion that assault in the second degree is a lesser included offense of the crime of rape.

Assault with the intent to commit rape is a lesser included offense of rape. State v. Marselle, 43 Wash. 273, 86 P. 586 (1906). It has also been held that assault is an element of the crime of assault with intent to rape. State v. La Vine, 68 Wash.2d 83, 411 P.2d 436 (1966). The combination of these two principles indicates that assault is a lesser included offense of the crime of rape. Moreover, our state Supreme Court has indicated that it considers second degree assault a lesser included offense of rape. State v. Thompson, 58 Wash.2d 598, 364 P.2d 527 (1961). In Thompson, the defendant was charged with first degree murder committed in the commission of a rape. He challenged the instruction that murder in the second degree was a lesser included offense of murder in the first degree, contending that he was guilty of first degree or nothing because second degree murder is murder in commission of a felony Not listed in under first degree. The court said:

We do not agree. The jury was specifically instructed that murder in the second degree was an included lesser offense, and that it might find the appellant guilty of murder in the second degree if it found him guilty of the crime of Assault (Italics in original.) in the second degree. This instruction warranted the return of the verdict in question Because rape or attempted rape does not exclude the commission of an assault. Indeed, an assault is generally the implementation of a rape, except, of course, when it is statutory rape. The jury was instructed on the crime of assault in the second degree. It evidently found that the appellant was guilty of assault rather than attempted rape and, therefore, returned a verdict of murder in the second degree. The verdict was proper.

(Italics ours.) State v. Thompson, Supra, at 606, 364 P.2d at 532.

In addition to the above line of cases, an examination of the statutes themselves support our conclusion. We confine our analysis to the parts of the two criminal statutes on which the jury was instructed, although some other sections are applicable to different fact patterns of second degree assault.

RCW 9.79.010 defines and punishes rape as follows: ¹

Rape is an act of sexual intercourse with a female not the wife of the perpetrator committed against her will and without her consent. Every person who shall perpetrate such an act of sexual intercourse with a female of the age of ten years or upwards not his wife:

(1) When, through idiocy, imbecility or any unsoundness of mind, either temporary or permanent, she is incapable of giving consent; or

(2) When her resistance is forcibly overcome; or

(3) When her resistance is prevented by fear of immediate and great bodily harm which she has reasonable cause to believe will be inflicted upon her; or

(4) When her resistance is prevented by stupor or weakness of mind produced by an intoxicating narcotic or anaesthetic agent administered by or with the privity of the defendant; or

(5) When she is at the time unconscious of the nature of the act, and this is known to the defendant;

Shall be punished by imprisonment in the state penitentiary for not less than five years.

(Italics ours.) The information was based and the jury was instructed on subsection (2) of the statute. Instruction 4 defined rape as 'an act of sexual intercourse with a female not the wife of the perpetrator, committed against her will and without her consent when her resistance is forcibly overcome.' The jury was instructed (instruction 5) that one of the elements which the state must prove is that 'said act of sexual intercourse was committed against her (the victim's) will and without her consent and when her resistance is forcibly overcome.'

The second degree assault statute, RCW 9.11.020, states:

Every person who, under circumstances not amounting to assault in the first degree--

(1) With intent to injure, shall unlawfully administer to or cause to be taken by another, poison or any other destructive or noxious thing, or any drug or medicine the use of which is dangerous to life or health; or

(2) With intent thereby to enable or assist himself or any other person to commit any crime, shall administer to, or cause to be taken by, another, chloroform, ether, laudanum or any other intoxicating narcotic or anaesthetic; or

(3) Shall wilfully inflict grievous bodily harm upon another with or without a weapon; or

(4) Shall wilfully assault another with a weapon or other instrument or thing likely to produce bodily harm; or

(5) Being armed with a deadly weapon shall wilfully assault another with a whip; or

(6) Shall assault another with intent to commit a felony, or to prevent or resist the execution of any lawful process or mandate of any court officer, or the lawful apprehension or detention of himself or another person; or

(7) While hunting any game or other animals or birds, shall shoot another;

Shall be guilty of assault in the second degree and be punished by imprisonment in the state penitentiary for not more than ten years or by a fine of not more than one thousand dollars, or by both.

(Italics ours.) The jury was instructed on subsection (6). Instruction 8 stated:

Every person who shall assault another with intent to commit a felony shall be guilty of assault in the second degree. The crime of Rape is a felony.

Instruction 9 stated in part:

(T)he term 'assault' means any unlawful, unpermitted or intentional touching or striking of another, regardless of whether or not any actual physical harm is done to the victim.

The issue raised by these instructions, therefore, is whether an unlawful touching of another with intent to commit a felony is a lesser included offense of the felony of 'an act of sexual intercourse . . . committed against (a female's) will and without her consent when her resistance is forcibly overcome.' Common sense dictates that it is. Clearly, all the elements of this type of second degree assault are necessary elements of this type of rape. Unless there has been an unlawful touching with an intent to commit a felony, there has been no crime of rape committed by forcibly overcoming the victim's resistance.

Substitution of judge. Bowen's trial was conducted and the verdict accepted by Judge Joseph H. Johnston. Judge Johnston's successor in office, Judge G. B. Chamberlin denied the motion for new trial and imposed sentence. Bowen contends that Judge Chamberlin was without jurisdiction to make these rulings by virtue of RCW 2.28.030, which provides in relevant part:

A judicial officer is a person authorized to act as a judge in a court of justice. Such officer shall not act as such in a court of which he is a member in any of the following cases:

(2) When he was not present and sitting as a member of the court at the hearing of a matter submitted for its decision.

The power of a judge other than the one who conducted the trial to impose sentence had been approved by our Supreme Court. In re Jaime v. Rhay, 59 Wash.2d 58, 365 P.2d 772 (1961); State v. Lindsey, 194 Wash. 129, 77 P.2d 596 (1938). In Lindsey the judge who heard the testimony imposed improper sentences. On remand the new...