State v. Eastmond

• Decision Date: 18 July 1996
• Docket Number: No. 63252-9,63252-9
• Citation: 919 P.2d 577,129 Wn.2d 497
• Court: Washington Supreme Court
• Parties: The STATE of Washington, Respondent, v. Rondo EASTMOND, Petitioner.

Page 497

129 Wn.2d 497

919 P.2d 577

The STATE of Washington, Respondent, v. Rondo EASTMOND, Petitioner.

No. 63252-9.

Supreme Court of Washington.

Argued May 16, 1996.

Decided July 18, 1996.

Appelwick, Trickey & Lukevich, Michael J. Trickey, Peter M. Lukevich, Seattle, for petitioner.

Jim H. Krider, Prosecuting Attorney, S. Aaron Fine, Deputy Prosecuting Attorney, Everett, for respondent.

DOLLIVER, Justice.

Defendant challenges for the first time on appeal a jury instruction's statement of the elements of second degree assault. Reconfirming our decision in State v. Byrd, 125 Wash.2d 707, 712, 887 P.2d 396 (1995), we hold the trial court's failure to provide a specific intent instruction constituted reversible error. We write particularly to clarify the two-step inquiry performed by an appellate court when considering a jury instruction error first raised on appeal.

This case arises from the conviction of Defendant Rondo Eastmond for second degree assault with a deadly weapon under RCW 9A.36.021(1)(c), which states:

A person is guilty of assault in the second degree if he or she, under circumstances not amounting to assault in the first degree:

....

(c) Assaults another with a deadly weapon....

The factual dispute at trial concerned whether Defendant pointed his gun menacingly at a restaurant cashier to demand she return his bottle of wine or whether he tried to check the weapon by handing her the butt of the gun.

The State proposed a jury instruction for two forms of assault: (1) an attempt to cause bodily injury by unlawful force, accompanied by the apparent present ability to cause such harm, and (2) an attempt to cause fear and apprehension of bodily injury by unlawful force, regardless of any intent or ability to inflict injury. See State v. Byrd, 125 Wash.2d 707, 712-13, 887 P.2d 396 (1995). To prove assault by attempt to cause injury, the State must show specific intent to cause bodily injury but need not provide evidence of injury or fear in fact. Byrd, 125 Wash.2d at 713, 887 P.2d 396; State v. Frazier, 81 Wash.2d 628, 631, 503 P.2d 1073 (1972). Assault by attempt to cause fear and apprehension of injury requires specific intent to create reasonable fear and apprehension of bodily injury. Byrd, 125 Wash.2d at 713, 887 P.2d 396. A jury may infer specific intent to create fear from the defendant's pointing a gun at the victim, unless the victim knew the weapon was unloaded, but not from mere display. State v. Miller, 71 Wash.2d 143, 146, 426 P.2d 986 (1967); State v. Karp, 69 Wash.App. 369, 374-75, 848 P.2d 1304, review denied, 122 Wash.2d 1005, 859 P.2d 602 (1993); State v. Murphy, 7 Wash.App. 505, 511, 500 P.2d 1276, review denied, 81 Wash.2d 1008 (1972).

The current Washington Pattern Jury Instruction for assault reflects the necessity of a specific intent instruction:

[An assault is [also] an act, with unlawful force, done with intent to inflict bodily injury upon another, tending, but failing to accomplish it, and accompanied with the apparent present ability to inflict the bodily injury if not prevented. [It is not necessary that bodily injury be inflicted.]]

[An assault is [also] an act, with unlawful force, done with the intent to create in another apprehension and fear of bodily injury, and which in fact creates in another a reasonable apprehension and imminent fear of bodily injury even though the actor did not actually intend to inflict bodily injury.]

WPIC 35.50 (2d ed. 1994) (emphasis added); see Byrd, 125 Wash.2d at 711 n. 2, 887 P.2d 396.

The trial court refused the State's assault instruction and instead instructed the jury:

INSTRUCTION NO. 6

To convict the defendant of the crime of assault in the second degree, each of the following elements of the crime must be proved beyond a reasonable doubt:

(1) That on or about the 30th day of September, 1988, the defendant intentionally assaulted [the victim] with a deadly weapon.

(2) That the acts occurred in Snohomish County, Washington.

If you find from the evidence that each of these elements has been proved beyond a reasonable doubt, then it will be your duty to return a verdict of guilty.

On the other hand, if, after weighing all of the evidence, you have a reasonable doubt as to any one of these elements, then it will be your duty to return a verdict of not guilty.

INSTRUCTION NO. 7

An assault is an intentional act, with unlawful force, which is capable of inflicting bodily injury upon another or is accompanied by the apparent present ability to inflict bodily injury upon another. It is not necessary that bodily injury be inflicted or that apprehension and fear of bodily injury be created in another.

INSTRUCTION NO. 8

A person acts with intent or intentionally when acting with the objective or purpose to accomplish a result which constitutes a crime.

Clerk's Papers at 32-34. Defendant neither submitted a jury instruction on assault nor excepted the trial court's instruction.

For the first time on appeal, Defendant claimed the presentation of the elements of second degree assault in Instruction 7 contained two errors. Defendant primarily contended the trial court neglected to supply a specific intent instruction and thereby impermissibly relieved the State of its burden to prove all material elements of the crime. In addition, Defendant maintained the trial court misstated the law of assault by attempt to cause fear by removing the element of fear in fact.

The Court of Appeals affirmed judgment, holding Defendant neither preserved his right to appeal Instruction 7 nor asserted a manifest error to permit an initial challenge on appeal. State v. Eastmond, No. 29520-9-I, slip op. at 4-5 (Wash.App. July 31, 1995). On the State's cross appeal, the court reversed Defendant's downward sentence. Eastmond, slip op. at 7. The Supreme Court granted Defendant's petition for discretionary review of his judgment. We now reverse.

Defendant faces two separate barriers to relief. First, to overcome the general bar to review of an issue first raised on appeal, the Court must apply the manifest error standard to determine whether Defendant's appeal achieves constitutional magnitude. State v. Scott, 110 Wash.2d 682, 684-85, 757 P.2d 492 (1988); RAP 2.5(a)(3); CrR 6.15(c). Only upon concluding review is appropriate will the Court decide if the error also provides grounds for reversal. Scott, 110 Wash.2d at 688, 757 P.2d 492.

By omitting an element of the crime of assault, the trial court here committed an error of constitutional magnitude. State v. Johnson, 100 Wash.2d 607, 623, 674 P.2d 145 (1983), overruled on other grounds by State v. Bergeron, 105 Wash.2d 1, 711 P.2d 1000 (1985); State v. McCullum, 98 Wash.2d 484, 487-88, 656 P.2d 1064 (1983); State v. Peterson, 73 Wash.2d 303, 306, 438 P.2d 183 (1968). We reject the State's characterization of the disputed error as located in the definition of assault and thereby falling short of the manifest error standard. See State v. Fowler, 114 Wash.2d 59, 65, 785 P.2d 808 (1990); State v. Ng, 110 Wash.2d 32, 44, 750 P.2d 632 (1988). As we settled in Byrd, specific intent represents an "essential element" and its omission results in manifest error. Byrd, 125 Wash.2d at 713-14, 887 P.2d 396.

Nor do the instructions viewed as a whole cure the deficiency. See State v. Benn, 120 Wash.2d 631, 655, 845 P.2d 289, cert. denied, 510 U.S. 944, 114 S.Ct. 382, 126 L.Ed.2d 331 (1993). Contrary to the State's assertions, Instruction 6, requiring a finding "the defendant intentionally assaulted," and Instruction 8, defining "intent," afford no further indication of the essential specific intent element. See Byrd, 125 Wash.2d at 714-15, 887 P.2d 396; State v. Allen, 101 Wash.2d 355, 359, 362, 678 P.2d 798 (1984); Peterson, 73 Wash.2d at 304-06, 438 P.2d 183.

Upon deciding the error at issue rises to a constitutional level sufficient for review, we next examine whether the trial court committed...