State v. Jimerson

• Decision Date: 09 October 1980
• Docket Number: No. 3547-III-6,3547-III-6
• Citation: 27 Wn.App. 415,618 P.2d 1027
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Raymond Arthur JIMERSON, Jr., Appellant.

Page 415

27 Wn.App. 415

618 P.2d 1027

STATE of Washington, Respondent, v. Raymond Arthur JIMERSON, Jr., Appellant.

No. 3547-III-6.

Court of Appeals of Washington, Division 3, Panel Three.

Oct. 9, 1980.

Reconsideration Denied Oct. 20, 1980.

Richard L. Cease, Public Defender, Paul J. Wasson, Asst. Public Defender, Spokane, for appellant.

Donald C. Brockett, Pros. Atty., Gregory G. Staeheli, Deputy Pros. Atty., Spokane, for respondent.

MUNSON, Judge.

Raymond Arthur Jimerson, Jr., appeals his conviction on two counts of second-degree assault. We reverse for failure to give an instruction on simple assault.

On December 22, 1978, Jimerson was driving his car and was accompanied by several friends. The car spun out on ice and snow near two off-duty policemen walking to a Christmas party. The policemen went over to the car to suggest that Jimerson drive more carefully. Jimerson and party responded by hurling epithets; Jimerson started to get out of the car, apparently prepared to fight. What then ensued is in question, but it appears the policemen identified themselves and forced Jimerson back into the car by pushing or possibly by grabbing his hair. Jimerson then drove away in one direction while the police proceeded in another. However, Jimerson turned around and accelerated rapidly toward the policemen on the other side of the street. The two officers tried to evade the car by climbing an embankment. One of them pulled his service revolver and fired at the oncoming car, putting a hole in a door; no occupant was injured. The car swerved toward the officers, but missed them. Jimerson then drove away and went home. Both he and his wife later called the police to report this incident; an investigation resulted in Jimerson's arrest and eventual conviction.

Jimerson testified that he had no intention of running down the officers, but merely intended to drive by, splashing them with slush. A jury nevertheless found him guilty of second-degree assault. He asserts two grounds of appeal.

Jimerson first argues that he should have been allowed a jury instruction as to the lesser included offense of simple assault. Jimerson was charged with assault in the first degree under RCW 9A.36.010, ¹ and an instruction was given as to the lesser included offense of assault in the second degree pursuant to RCW 9A.36.020. ² Jimerson's proposed instruction on simple assault was denied because the court believed there was insufficient evidence.

In State v. Workman, 90 Wash.2d 443, 447-48, 584 P.2d 382 (1978), the court held:

Under the Washington rule, a defendant is entitled to an instruction on a lesser included offense if two conditions are met. First, each of the elements of the lesser offense must be a necessary element of the offense charged.... Second, the evidence ... must support an inference that the lesser crime was committed.

(Citations omitted.)

Neither the present nor the former criminal codes defined the word "assault." We presume this is because it has been firmly established in this state that an assault is an attempt, with unlawful force, to inflict bodily injury upon another, accompanied with apparent present ability to give effect to the attempt if not prevented. State v. Garcia, 20 Wash.App. 401, 403, 579 P.2d 1034 (1978); State v. Norby, 20 Wash.App. 378, 381, 579 P.2d 1358 (1978); State v. Murphy, 7 Wash.App. 505, 511, 500 P.2d 1276 (1972). Cf. State v. Roybal, 82 Wash.2d 577, 583, 512 P.2d 718 (1973); Peasley v. Puget Sound Tug & Barge Co., 13 Wash.2d 485, 505, 125 P.2d 681 (1942); State v. Bishop, 6 Wash.App. 146, 491 P.2d 1359 (1971). Thus, simple assault as defined by the legislature ³ concerns an assault which involves neither the intent nor the result denoted in the definition of assault in the first, second or third degree. ⁴ The first condition of lesser included offenses has been met. State v. Johnson, 184 Wash. 493, 496, 52 P.2d 317 (1935).

As to the second element, whether the evidence supports the inference that the lesser crime was committed, the facts determine whether a lesser-included-offense instruction should be given. State v. Johnson, supra at 496, 52 P.2d 317, quoting from State v. Reynolds, 94 Wash. 270, 276, 162 P. 358 (1917), states:

"In law, assault in the third degree (under the previous criminal code assault in the third degree was defined in the same manner as is simple assault now) is included within a charge of assault in the second degree, but where a defendant is charged with assault in the second degree, the question whether he is guilty of assault in the third degree should not be submitted to the jury unless the facts of the particular case are such that they will sustain a conviction of assault in the third degree."

In Johnson, there is no statement of facts and so it is impossible for this court to determine how the assault was committed. However, in State v. Emerson, 19 Wash.2d 700, 144 P.2d 262 (1943), the evidence supported an allegation that an assault had been committed with a knife. There, the court held that the defendant was guilty of assault in the second degree or not guilty of any degree of assault. Similarly, in State v. Snider, 70 Wash.2d 326, 422 P.2d 816 (1967), on the charge of robbery, Snider had pleaded guilty to grand larceny resulting from his taking a wristwatch off the victim's arm after an affray had ceased. Snider also testified that a codefendant, Olson, had been engaged in the fight and had some money and a wallet in his hands. The court there held that as to Olson there was no error in failing to give a lesser-included-offense instruction because he was either guilty of the robbery or nothing. Here, the state argues that a simple assault could not be accomplished with a car. However, if the intent of assault is not to be carried out by the car but rather the car is to be used to put some other nondeadly force into motion which amounts to an assault, such as slush or water from a mud puddle, then the car could be used to commit a simple assault. Here, Jimerson testified his intention was not to hit the officers with his car, but only to spray them with slush from the icy and wet road. He also testified that he drove the car up the bank and then swerved away as a reflex action upon seeing one of the officers draw his gun. The trial court apparently weighed this testimony and found it wanting. ⁵

Jimerson is entitled to a jury instruction on a lesser included offense if any evidence was produced which would justify a reasonable person in concluding that the lesser included offense had been committed. State v. Burley, 23 Wash.App. 881, 598 P.2d 428 (1979); State v. West, 18 Wash.App. 686, 571 P.2d 237 (1977). The credibility of Jimerson's testimony was for the jury to decide. We find the instruction on the lesser included offense of simple assault should have been given and the failure to do so was prejudicial error.

Jimerson also argued that he should have been able to cross-examine the police officers as to their knowledge of the elements of the various degrees of assault. His purpose was to suggest a motive for falsified testimony that the officers needed to allege a felony in order to justify to their superiors the firing of their sidearms.

The scope of cross-examination, particularly as to the relevancy of evidence sought thereby, is within the control and sound discretion of the trial court. State v. Cerny, 78 Wash.2d 845, 849, 480 P.2d 199 (1971); Chase v. Beard, 55 Wash.2d 58, 61, 346 P.2d 315 (1959); Chase v. Tacoma, 23 Wash.App. 12, 17, 594 P.2d 942 (1979). Discretion is abused when no reasonable person would take the action adopted by ...