State v. Boyd, 5703-I

• Decision Date: 09 October 1978
• Docket Number: No. 5703-I,5703-I
• Citation: 21 Wn.App. 465,586 P.2d 878
• Parties: The STATE of Washington, Respondent, v. Richard Lee BOYD, Appellant.
• Court: Washington Court of Appeals

Page 465

21 Wn.App. 465

586 P.2d 878

The STATE of Washington, Respondent, v. Richard Lee BOYD, Appellant.

No. 5703-I.

Court of Appeals of Washington, Division 1.

Oct. 9, 1978.

Rehearing Denied Nov. 16, 1978.

[586 P.2d 880] John G. Ziegler, Seattle (Court Appointed), for appellant.

Christopher T. Bayley, King County Prosecuting Atty., Lee Ann Miller, Deputy Pros. Atty., Seattle, for respondent.

SOULE, Judge.

On April 1, 1977, the defendant Richard Lee Boyd was tried before a jury and convicted of robbery in the second degree. On the basis of this conviction and two previous felony convictions, Boyd was tried on May 26, 1977, before a jury and found to be a habitual criminal. Thereafter, he was sentenced to life imprisonment. This appeal followed.

In the early morning of February 2, 1977, Gerald Plith and his taxi cab were dispatched to pick up Boyd and one, Bradshaw, who directed him to an address in Seattle. A few blocks before arriving at the destination Plith was directed to stop and Bradshaw gave him a twenty dollar bill to pay the fare. When Plith took out his wallet to make change, Bradshaw tried to take the money from him. Plith testified:

A He started grabbing for the money. I distinctly remember his struggling with me for a few seconds and then he kept saying, "Get the piece. Get the piece. Get the piece." Something was put on the back of my neck that felt like a gun barrel and I stopped resisting.

Q When you had seen them getting in the cab, did you make any observation as to what they were carrying?

A Mr. Boyd had a sack with something in it.

Q After Mr. Bradshaw yelled "Get the piece," what happened?

A I felt the object that felt like a gun barrel against the back of my neck and I said, "Man, don't shoot."

Q Did you actually see a weapon?

A No, but it felt like a gun against the back of my neck.

Q After you told them not to shoot, what happened?

A I stopped resisting. Mr. Bradshaw was in front by this time, and he took the money and the billfold, and they said something about taking off "When we get out of the car." Whereupon they got out of the car and I drove on up on Yesler.

Responding to Bradshaw's imperative "get the piece," Boyd put a metal hotcomb against Plith's neck. Bradshaw took Plith's money, then he and Boyd left the cab.

Bradshaw and Boyd had been drinking before the incident and were arguing in the back seat of the taxi cab about another matter when they directed the driver to stop. Boyd testified that there had been no prior discussion regarding a robbery attempt, and that he had no intent to steal Plith's wallet. The court submitted to the jury an instruction relating to voluntary intoxication. RCW 9A.16.090, WPIC 18.10. On the basis of the testimony that Boyd had no intent to rob Plith, his counsel proposed an instruction on simple assault as a lesser-included offense. The trial court ruled that simple assault is not a lesser-included offense within the charge of robbery in the second degree. This ruling is assigned as error.

Before the habitual criminal proceedings began, Boyd objected to the use of his prior conviction for grand larceny in 1968 on the basis that he had entered a plea of guilty without knowledge of the sentencing consequences. The court conducted an evidentiary hearing in which Boyd's attorney on the 1968 charge testified that on the basis of a note in his file he could say that the defendant had been told of the maximum sentence before he changed his plea. The transcript of the sentencing proceeding shows that Boyd knew of the prosecutor's recommendation, and of the fact that the judge is not bound by such recommendation. On the basis of the record and the totality of the circumstances, the court overruled the defendant's objection to the use of the grand larceny conviction and the jury verdict resulted in the finding that he is a habitual criminal. Boyd also assigns as error this ruling.

LESSER-INCLUDED OFFENSE

Relying on State v. Bresolin, 13 Wash.App. 386, 534 P.2d 1394 (1975), Boyd argues (1) that the assault he admits is the same assault alleged by the State as the act constituting the infliction of force or fear necessary to convict of robbery, and that this assault was committed in an effort to protect Plith, and (2) the evidence of his intoxication and his testimony was sufficient so the jury could have found that he was guilty of a simple assault without intent. Therefore, he concludes the jury should have been instructed that simple assault is a lesser-included offense within robbery, and the refusal by the trial court to so instruct constitutes error. We do not agree with defendant.

The fallacy in defendant's position lies not in the assertion that the lesser degrees of assault are legally included in the crime of robbery. For the purpose of this decision, we assume that they can be, given appropriate facts, and under some circumstances, this may include even simple assault where the specific intent is not required. State v. Bishop, 90 Wash.2d 185, 580 P.2d 259 (1978); State v. Roybal, 82 Wash.2d 577, 512 P.2d 718 (1973). The problem with defendant's position is that he assumes, because the court was liberal and gave an instruction on intoxication as a defense that the record in fact contains evidence of his intoxication sufficient to create a question for the jury as to whether he was so affected by alcohol that he was incapable of forming a specific intent to rob. We find the record lacks sufficient facts to require either the giving of the instruction on intoxication or the giving of the requested instruction on the lesser-included offense of simple assault.

It has long been recognized that a lesser-included offense instruction may be proper in the abstract, yet inappropriate in the light of the particular facts. In State v. Kruger, 60 Wash. 542, 111 P. 769 (1910), the court observed at page 544, 111 P. at page 770:

It was never the intent of the law to submit a possible verdict upon a so-called included crime because included in law. It must be included in fact, and by the facts of the particular case.

See also State v. Claybourne, 14 Wash.App. 314, 541 P.2d 1230 (1975).

Although voluntary intoxication is recognized and defined by statute, RCW 9A.16.090, as a factor which may be considered in determining whether a given mental state exists, it is not a favored concept. See State v. Runnells, 64 Wash.2d 995, 390 P.2d 1003 (1964); State v. Miller, 177 Wash. 442, 462, 32 P.2d 535 (1934). Cf. State v. Kroll, 87 Wash.2d 829, 558 P.2d 173 (1976); 22 C.J.S. Criminal Law § 68(a), n. 35 (1973).

An uncritical reading of some of the decisions of this jurisdiction can lead to the mistaken impression that the mere evidence of drinking is automatically enough to require the defense of intoxication to be submitted to the jury. This occurs because the evidence is sometimes not clearly detailed by the opinion, nor the requirements discussed. See State v. Smithers, 67 Wash.2d 666, 669, 409 P.2d 463 (1965); State v. Mitchell, 65 Wash.2d 373, 397 P.2d 417 (1964); State v. Norby, 20 Wash.App. 378, 579 P.2d 1358 (1978).

As explained in State v. Zamora, 6 Wash.App. 130, 491 P.2d 1342 (1971), the rule is somewhat more restricted. It becomes a question for the jury only when and if the proper foundation is laid. In that case, there was evidence that the defendant had been drinking; that he appeared to be drunk; that his speech was slurred; that he did not look normal, yet the court held that it was proper to refuse to give instructions on involuntary intoxication as it affects intent to commit assault in the second degree because there was no substantial evidence to warrant such an instruction. In so holding, the court recognized a threshold test when it said at pages 132, 133 and 134, 491 P.2d at pages 1344-45:

Intoxication "refers to an impaired mental and bodily condition which may be produced either by alcohol, which is a drug, or by any other drug." . . . In searching the record for evidence of intoxication, we search both for evidence of consumption of alcohol or other drugs and The effect of such consumption upon the defendant's ability to form the requisite intent. . . . Such evidence must be substantial in character. "Substantial evidence is that character of evidence which would convince an unprejudiced, thinking mind of the truth of the fact to which the evidence is directed." Arnold v. Sanstol, 43 Wash.2d 94, 98, 260 P.2d 327 (1953). The determination of whether or not there is substantial evidence is a law question for the court.

Thus, it is common knowledge that one may exhibit symptoms of having consumed alcohol without necessarily losing the capacity to form an intent to do an act. Whether one's capacity to form such an intent has been destroyed depends on how much alcohol is consumed and over what period of time. If, therefore, There is both evidence of the consumption of alcohol or other drugs and opinion testimony based thereon concerning the existence of intoxication, i. e. impaired mental and bodily condition as defined in State v. Dana, supra, the totality of such evidence is substantial evidence from which it can be found that the defendant was incapable of forming the required intent. Provins v. Bevis, 70 Wash.2d (131) at 137-38, 422 P.2d 505; State v. Baker (56 Wash.2d 846, 355 P.2d 806) Supra. If on the other hand, evidence of intoxication is based merely on opinion evidence, unsupported by facts on which to base it, the evidence at best is merely scintilla in character.

See State v. Carter (5 Wash.App. 802, 490 P.2d 1346), Supra ; State v. Tyler, 77 Wash.2d 726, 466 P.2d 120 (1970). Scintilla evidence is something less than substantial evidence. It is speculative and conjectural, and does not have the fitness to induce conviction. An issue supported only by scintilla evidence should be withdrawn from the case. It is not error to refuse an instruction supported merely by scintilla evidence, as distinguished from...