State v. Davis

• Decision Date: 08 April 1991
• Docket Number: No. 24288-1-I,24288-1-I
• Citation: 808 P.2d 167,60 Wn.App. 813
• Parties: STATE of Washington, Respondent, v. Darvil DAVIS, Appellant.
• Court: Washington Court of Appeals

Page 813

60 Wn.App. 813

808 P.2d 167

STATE of Washington, Respondent, v. Darvil DAVIS, Appellant.

No. 24288-1-I.

Court of Appeals of Washington Division 1.

April 8, 1991.

As Amended May 20, 1991.

Andrew Zinner, Washington Appellate Defender, for appellant.

Jeffrey Smith, Theresa L. Fricke, Deputys, King County Pros. Attys. Office, for respondent.

WEBSTER, Judge.

Davil ¹ Davis appeals his convictions of second and fourth degree assault. He asserts that: (1) the information charging him with fourth degree assault should be dismissed because it failed to allege the essential elements of the crime, and (2) the second degree assault conviction should be reversed because the trial court erred in giving an aggressor instruction. We affirm.

FACTS

The facts pertaining to the charge of fourth degree assault are as follows: On August 8, 1988, Davis and his girlfriend, Darlynn, were entertaining four guests at their apartment. Darlynn became drunk and started arguing with Davis. She left to go on a walk with her friend, Sonya. They returned and Darlynn resumed her argument with Davis while Sonya went for a walk with someone else. Davis slapped Darlynn on the face. He testified he did this "to calm her down." Davis then asked the remaining guests to leave. When Sonya later returned to Davis's apartment, she found Darlynn crying.

Davis was charged with fourth degree assault for slapping his girlfriend. The charge against Davis alleged:

That the defendant Darvil [sic ] Davis, in King County, Washington, on or about August 1, 1988, did assault Darlynn Ferguson;

Contrary to RCW 9A.36.041, and against the peace and dignity of the state of Washington.

At no time did Davis's attorney make a motion to dismiss the fourth degree assault charge or request a bill of particulars. The jury convicted Davis of fourth degree assault.

Davis was also charged with two counts of second degree assault with a deadly weapon, a knife. Davis claimed that the stabbings occurred in self-defense. The State proposed an aggressor instruction and Davis's attorney made no objection to the instruction. ² The jury convicted Davis on the first count of second degree assault and acquitted him on the second count.

DISCUSSION

The first issue is whether the fourth degree assault charge is defective, either because the information failed to allege the element of intent, or because it did not notify the defendant of the manner in which he allegedly committed the assault. As a preliminary matter, we find that this claimed error is of constitutional magnitude and thus reviewable for the first time on appeal. See RAP 2.5(a)(3); State v. Scott, 110 Wash.2d 682, 687, 757 P.2d 492 (1988); State v. Leach, 113 Wash.2d 679, 690, 691, 782 P.2d 552 (1989). ³

Davis contends that the State's failure to allege the element of intent in the charging document renders the fourth degree assault charge defective. The general rule is that an information sufficiently charges a crime if it apprises accused persons with reasonable certainty of the nature of the accusation, so that they can prepare a proper defense and plead the judgment as a bar to any subsequent prosecution for the same offense. Leach, at 695, 782 P.2d 552; State v. Grant, 89 Wash.2d 678, 686, 575 P.2d 210 (1978); State v. Royse, 66 Wash.2d 552, 557, 403 P.2d 838 (1965). Washington courts have consistently held that a charging document that fails to apprise the defendant of all of the statutory elements of the crime is constitutionally defective. Leach, 113 Wash.2d at 686-89, 782 P.2d 552; State v. Holt, 104 Wash.2d 315, 320, 704 P.2d 1189 (1985); State v. Unosawa, 29 Wash.2d 578, 585-89, 188 P.2d 104 (1948); Leonard v. Territory, 2 Wash.Terr. 381, 389-94, 7 P. 872 (1885); State v. Hopper, 58 Wash.App. 210, 792 P.2d 171 (1990). The logic behind this rule is that an information that does not contain the crime's essential statutory elements does not state a crime. Leach, 113 Wash.2d at 686, 782 P.2d 552; Holt, 104 Wash.2d at 320-21, 704 P.2d 1189. The State is not required to use the exact words of the statute if it uses other words which "equivalently or more extensively signify the words in the statute." Leach, 113 Wash.2d at 686, 782 P.2d 552; see RCW 10.37.160. Moreover, the charging document need not "list every element of the crime. Rather, [it] must allege sufficient facts to support every element of the crime charged." Leach, at 688, 782 P.2d 552.

In Leach, the Washington Supreme Court held that, in addition to apprising the defendant of all of the crime's statutory elements, the charging document must apprise the defendant of all of the crime's "essential elements," regardless of whether those elements are mentioned in the text of the statute. Leach, at 689, 782 P.2d 552. The Leach court acknowledged that, in certain circumstances, following the statutory language may not define a crime sufficiently for the accused to prepare a defense and plead the judgment as a bar to any subsequent prosecution for the same offense. Leach, at 688-89, 782 P.2d 552. Such circumstances, however, have been rare. ⁴ We do not interpret Leach as requiring the State to inform the defendant of a crime's court-implied elements in the information, so long as the information follows the language of the statute and apprises "a person of common understanding" ⁵ of the nature of the crime so that the defendant can properly prepare a defense and plead the judgment as a bar to double jeopardy. ⁶ See State v. Sims, 59 Wash.App. 127, 129, 796 P.2d 434 (1990) (citing Leach, 113 Wash.2d at 686, 782 P.2d 552); State v. Strong, 56 Wash.App. 715, 717-18, 785 P.2d 464, review den'd, 114 Wash.2d 1022, 792 P.2d 533 (1990); State v. Smith, 49 Wash.App. 596, 598, 744 P.2d 1096 (1987), review den'd, 110 Wash.2d 1007 (1988). To the extent that other decisions issued by the court of appeals conflict with our interpretation, we decline to follow them. State v. Robinson, 58 Wash.App. 599, 605-06, 794 P.2d 1293 (1990) (dismissing fourth degree assault charge because the citation did not mention the element of intent); see State v. Nieblas-Duarte, 55 Wash.App. 376, 380, 777 P.2d 583, review den'd, 113 Wash.2d 1030, 784 P.2d 530 (1989) (implying that information must allege a crime's court-implied elements).

Even if Leach requires the information to apprise the defendant of a crime's court-implied elements, a crime's court-implied mens rea element need not be explicitly alleged. See State v. Sly, 58 Wash.App. 740, 746, 794 P.2d 1316 (1990). An information that includes all of a crime's statutory elements is generally sufficient to apprise the defendant of any implied mens rea element. See State v. Bonds, 98 Wash.2d 1, 16-17, 653 P.2d 1024 (1982); State v. Bower, 28 Wash.App. 704, 707 n. 2, 626 P.2d 39 (1981); Smith, 49 Wash.App. at 599, 744 P.2d 1096. As a practical matter, the mens rea element is generally established only by circumstantial evidence; thus, facts sufficiently alleging the prohibited conduct are sufficient to support the intent element. In two recent decisions, this court addressed the sufficiency of a robbery charge, which included all of the statutory elements of the crime, but did not allege the common law element of intent to deprive the victim of the victim's property. Strong; Sly. In both decisions, the court held that the facts reciting the statutory language supported the element of intent and apprised the defendant with reasonable certainty of the crime charged. Strong, 56 Wash.App. at 719, 785 P.2d 464; Sly, 58 Wash.App. at 747, 794 P.2d 1316.

In the instant case, Davis was charged under RCW 9A.36.041, which states:

(1) A person is guilty of assault in the fourth degree if, under circumstances not amounting to assault in the first, second, or third degree, or custodial assault, he or she assaults another.

(2) Assault in the fourth degree is a gross misdemeanor.

The information charged that "the defendant Darvil Davis ... did assault Darlynn Ferguson ... [c]ontrary to RCW 9A.36.041." The information thus included all of the statutory elements of fourth degree assault. Davis correctly points out that assault in the fourth degree is simple assault at common law and requires proof of intent. State v. Sample, 52 Wash.App. 52, 757 P.2d 539 (1988); State v. Jones, 34 Wash.App. 848, 664 P.2d 12 (1983). Omitting the allegation that Davis intended to commit the assault did not impair his ability to prepare a defense or to plead the judgment as a bar to subsequent prosecutions for the same offense. Moreover, "assault" is a term of common understanding. See State v. Pawling, 23 Wash.App. 226, 233, 597 P.2d 1367 (1979). If the meaning of assault can fairly be imputed to laypersons, then the mens rea element inherent in the meaning of assault is also evident to laypersons. We note that Davis is not claiming that exclusion of the intent element from the charging document prejudiced him, or that he was not apprised of the crime charged. Thus, the information also apprised Davis of the court-implied elements of fourth degree assault.

Davis next argues that the State failed to apprise him of the essential elements of fourth degree assault because it did not describe the manner in which the assault allegedly occurred. Davis relies on State v. Bray, 52 Wash.App. 30, 756 P.2d 1332 (1988), in which the court stated: "The manner of committing a crime is an element and the defendant must be informed of this element in the information in order to prepare a proper defense." (Emphasis added). Bray, at 34, 756 P.2d 1332. The rule stated in Bray, however, cannot be separated from its context. In Bray, the issue was whether the defendant could be tried under alternative statutory provisions defining the same crime, when the defendant had been charged under only one of the alternatives. Bray, at 34, 756 P.2d 1332. The court concluded, "[w]hen a statute provides that a crime may be committed in alternative ways or by alternative means,...