State v. Hupe
| Citation | 748 P.2d 263,50 Wn.App. 277 |
| Decision Date | 08 January 1988 |
| Docket Number | No. 18916-6-1,18916-6-1 |
| Parties | STATE of Washington, Respondent, v. Adam HUPE, Appellant. |
| Court | Court of Appeals of Washington |
Jesse O. Franklin, Deputy Pros. Atty., Seattle, for respondent.
Adam Hupe was found guilty by a jury of assault in the second degree. He appeals the judgment and sentence imposed. We affirm.
In November 1985, Adam Hupe shared an apartment with a former girlfriend. Hupe became upset when he returned home on November 22 to find another man, John, spending the night in the apartment. To make John leave, Hupe admits he pointed an unloaded rifle at John and told him "he had 30 seconds to get out or I would indeed blow his head off." Hupe testified that he also pushed the gun into John's stomach and said "leave." John did not know the gun was unloaded. Hupe testified he did not intend to hurt John. Hupe was charged with and convicted of second degree assault under RCW 9A.36.020(1)(c). 1
Second degree assault is a felony. Hupe first contends he should have been prosecuted under RCW 9.41.270 for unlawful display of a firearm, a misdemeanor, 2 and that the State's failure to do so warrants reversal.
Hupe argues his conviction should be reversed because principles governing concurrent statutes require he be charged with the specific offense of unlawful display of a firearm rather than second degree assault, a general offense. Hupe further contends that by charging him with second degree assault instead of unlawful display, the State violated his equal protection guarantees and due process rights.
Judge Warren Chan provided the short answer to Hupe's concurrent statute and equal protection arguments when he ruled on Hupe's motion to dismiss. Judge Chan held the State could properly prosecute Hupe for second degree assault, as Hupe was exempt from prosecution under RCW 9.41.270(3)(a), which provides that the unlawful display statute does not apply to "[a]ny act committed by a person while in his place of abode...." The prosecuting attorney thus had no discretion in choosing to charge Hupe with either a felony or misdemeanor. We believe that the constitutional issue deserves further analysis.
Criminal statutes are concurrent when a general statute is violated in each instance the special statute is Charging a defendant with a general statute when a concurrent special statute is applicable can result in an equal protection violation. The violation occurs because the State, by selecting the crime charged, can obtain varying degrees of punishment while proving identical criminal elements. In State v. Farrington, 35 Wash.App. 799, 669 P.2d 1275 (1983), this court stated:
violated. State v. Shriner, 101 Wash.2d 576, 580, 681 P.2d 237 (1984). If a general and a special statute are concurrent, the special statute applies and a defendant can be charged only under the special statute. State v. Shriner, supra at 580, 681 P.2d 237; State v. Jendrey, 46 Wash.App. 379, 387, 730 P.2d 1374 (1986). Whether the special statute contains elements not found in the general statute is irrelevant. Shriner, 101 Wash.2d at 580, 681 P.2d 237
Where a special statute punishes the same conduct which is punished under a general statute, the special statute applies and the accused can be charged only under that statute. However, when the crimes have different elements, there is no constitutional defect. The test is whether a violation of the special statute necessarily violates the general statute.
(Citations omitted.) Farrington, at 802, 669 P.2d 1275. No equal protection violation occurs, however, "when the crimes the prosecutor has the discretion to charge require proof of different elements." In re Taylor, 105 Wash.2d 67, 68, 711 P.2d 345 (1985).
Similar conduct can be proscribed under different statutes provided the statutes are based on varying degrees of culpability. See State v. Shriner, supra 101 Wash.2d at 583, 681 P.2d 237. In enacting RCW 9A.36.020(1)(c) and RCW 9.41.270, the legislature ensured that conviction for second degree assault would require proof of a higher degree of culpability than would conviction for unlawful display.
The second degree assault statute requires a showing that the accused "knowingly assault[ed] another with a weapon" (emphasis added), whereas the unlawful display statute proscribes the "exhibit, display or draw [of] any firearm ... in a manner, under circumstances, and at a time and We find the statutes defining second degree assault and the unlawful display of a firearm are not concurrent. Because the statutes are not concurrent, Hupe's equal protection rights were not violated upon being charged with assault.
place that either manifests an intent to intimidate another or that warrants alarm...." It is, therefore, possible to commit the crime of unlawful display without committing second degree assault.
Hupe also contends that in punishing him for acts permitted under RCW 9.41.270(3)(a), the State violated his constitutional right to due process. His argument is without merit. Although RCW 9.41.270 allows the display of a weapon within one's own home, it does not permit display accompanied by a manifestation of assaultive intent. Second degree assault is prohibited wherever the assault may have occurred. Hupe cites no authority and we know of none which would exculpate a person from prosecution for assault committed in his own home. Hupe intentionally frightened John by verbally threatening him and poking him with a gun. Hupe's conduct was beyond the scope of RCW 9.41.270. We hold Hupe's due process rights were not violated.
Hupe next assigns error to jury instruction 7. 3 Instruction 7 provided three definitions of assault. Hupe alleges instruction 7 was erroneous because substantial evidence supporting a conviction under each definition was not presented at trial, and that therefore jury unanimity was not ensured. Although this issue was first raised in Hupe's reply brief, this court may consider it, as jury unanimity is an issue of constitutional magnitude. State v. Gitchel, 41 Wash.App. 820, 706 P.2d 1091 (1985).
Washington law requires unanimous jury verdicts in criminal cases. State v. Stephens, 93 Wash.2d 186, 607 P.2d 304 (1980). When the crime charged can be established by alternative means, jury unanimity is unnecessary as to the means. State v. Whitney, 108 Wash.2d 506, 510-11, 739 P.2d 1150 (1987). Nevertheless, the jury cannot be instructed on an alternative means that is not supported by substantial evidence, as it may then base its finding of guilt on an invalid ground. State v. Whitney, supra at 511, 739 P.2d 1150.
RCW 9A.36.020(1)(c) simply states that one is guilty of second degree assault if one "knowingly assault[s] another." The term "assault" is not defined in the criminal code; therefore courts use common law to define the crime. State v. Krup, 36 Wash.App. 454, 457, 676 P.2d 507 (1984); Peasley v. Puget Sound Tug & Barge Co., 13 Wash.2d 485, 504, 125 P.2d 681 (1942). Three definitions of assault have been recognized by Washington courts: (1) an attempt, with unlawful force, to inflict bodily injury upon another; (2) an unlawful touching with criminal intent; and (3) putting another in apprehension of harm whether or not the actor actually intends to inflict or is incapable of inflicting that harm. See Krup, 36 Wash.App. at 458-60, 676 P.2d 507 (). These three means of committing assault were each described in instruction 7. Instructing on each of these means may be error unless each was supported by substantial evidence. State v. Whitney, supra.
Hupe contends no evidence was offered at trial in support of instruction 7, paragraph 1, which described attempted assault as an act intended to inflict bodily injury. Hupe argues there was no evidence offered to support a finding of intent to inflict bodily harm. This argument fails to consider the...
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