State v. Smith

• Decision Date: 15 March 2007
• Docket Number: No. 76433-6.,76433-6.
• Citation: 154 P.3d 873,159 Wn.2d 778
• Court: Washington Supreme Court
• Parties: STATE of Washington, Respondent, v. Sarah Jane SMITH, Petitioner.

154 P.3d 873

159 Wn.2d 778

STATE of Washington, Respondent, v. Sarah Jane SMITH, Petitioner.

No. 76433-6.

Supreme Court of Washington, En Banc.

Argued September 29, 2005.

Decided March 15, 2007.

Wayne Clark Fricke, Attorney at Law, Tacoma, WA, for Petitioner.

Michelle Luna-Green, Pierce County Prosecuting Attorney, Tacoma, WA, for Respondent.

ALEXANDER, C.J.

¶ 1 Sarah Smith seeks reversal of her three convictions for second degree assault with a deadly weapon. At trial, the jury was instructed that "[a] person commits the crime of Assault in the Second Degree when under circumstances not amounting to Assault in the First Degree he or she assaults another with a deadly weapon." Clerk's Papers (CP) at 151. The jury was given an additional instruction that set forth the three common law definitions of assault. Smith contends here, as she did at the Court of Appeals, that the definitions constitute alternative means of committing the crime of assault in whichever degree charged and that in order to uphold the jury's unanimous verdict there must be substantial evidence to support each of the three definitions if submitted together in one instruction. The Court of Appeals concluded otherwise, holding that definitional instructions do not create alternative means of committing the crime. That court, therefore, concluded that Smith's constitutional right to a unanimous jury verdict was not violated. We affirm the Court of Appeals and uphold each of Smith's three second degree assault convictions.

I

¶ 2 On July 16, 2002, Smith and her estranged husband, Anthony, agreed by telephone that Anthony would pick up their two daughters for a visit later that day. Anthony arrived at Smith's house accompanied by his friend, Major Moriels, and Moriels's 12-year-old cousin. After parking the car, Anthony, Moriels, and the 12-year-old entered Smith's open garage. Although it is undisputed that a physical altercation between Smith and Anthony thereafter ensued, there is conflicting testimony about who was the primary aggressor and where the fight took place. In any event, at some point, Smith threatened to shoot Anthony and then retrieved a loaded .25 caliber handgun from her upstairs bedroom. Anthony and his two companions exited the house and returned to the car.

¶ 3 As the three of them got into the car, Smith appeared on her front porch with the weapon. The 12-year-old spotted the gun and warned the others, "Hurry up. She's got a gun." Verbatim Report of Proceedings (VRP) at 154. Immediately following that warning, Smith disengaged the safety and pulled the trigger.¹ The bullet discharged from Smith's handgun slammed into the vehicle, shattering the front passenger window. Moriels and the child were sprayed with glass. Fortunately, no one was seriously injured. Scared and upset, the three quickly left the scene.

¶ 4 The State thereafter charged Smith with three counts of first degree assault with a firearm, one count for each person in the car. It alleged, pursuant to RCW 9A.36.011(1)(a), that each assault was intentionally committed "with a firearm or deadly weapon." CP at 1, 2. At the close of evidence, the jury was instructed that "[a] person commits the crime of assault in the first degree when, with intent to inflict great bodily harm, he or she assaults another with a firearm." Id. at 141. In addition, the jury was instructed regarding the lesser-degree offense of second degree assault, the instruction reading, "A person commits the crime of Assault in the Second Degree when under circumstances not amounting to Assault in the First Degree he or she assaults another with a deadly weapon." Id. at 151. The jury was also given a separate instruction that set forth the common law definitions of assault. It read:

An assault is an intentional touching, striking, cutting, or shooting of another person, with unlawful force, that is harmful or offensive regardless of whether any physical injury is done to the person. A touching, striking, cutting, or shooting is offensive, if the touching, striking, cutting, or shooting would offend an ordinary person who is not unduly sensitive.

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.

Id. at 142.

¶ 5 The jury returned unanimous, general verdicts finding Smith guilty of three counts of second degree assault with a deadly weapon. The jury also unanimously determined that Smith was armed with a deadly weapon.

¶ 6 At sentencing, Smith received both an exceptional sentence downward of one day for each assault count, to be served concurrently, based on her "`incomplete defense' [of self-defense],"² and three consecutive 36-month firearm enhancements, for a total of 108 months or nine years. Id. at 231. She appealed her convictions on the theory that the State failed to present substantial evidence as to each definition of assault for each of the three victims³ and, thus, she argued, her constitutional right to jury unanimity was compromised.

¶ 7 Division Two of the Court of Appeals affirmed the convictions, holding that the common law assault definitions do not create alternative means of commission. Because the court held that the definitions of assault do not create an alternative means crime, it concluded that it need not reach the sufficiency of the evidence challenge presented on each count of assault. Smith filed a petition for review with this court. We granted review, limiting it to the issues addressed herein.⁴

II

¶ 8 A fundamental protection accorded to a criminal defendant is that a jury of his peers must unanimously agree on guilt. Const. art. I, § 21; State v. Stephens, 93 Wash.2d 186, 607 P.2d 304 (1980). It is well established, however, that when the crime charged can be committed by more than one means, the defendant does not have a right to a unanimous jury determination as to the alleged means used to carry out the charged crime or crimes should the jury be instructed on more than one of those means. State v. Kitchen, 110 Wash.2d 403, 410-11, 756 P.2d 105 (1988). But, in order to safeguard the defendant's constitutional right to a unanimous verdict as to the alleged crime, substantial evidence of each of the relied-on alternative means must be presented. Yet, a defendant may not simply point to an instruction or statute that is phrased in the disjunctive in order to trigger a substantial evidence review of her conviction. Likewise, where a disputed instruction involves alternatives that may be characterized as a "`means within [a] means,'" the constitutional right to a unanimous jury verdict is not implicated and the alternative means doctrine does not apply. In re Pers. Restraint of Jeffries, 110 Wash.2d 326, 339, 752 P.2d 1338 (1988) (refusing to accept defendant's claim that the jury should be additionally instructed on the subalternatives of the statutory alternatives at issue).

¶ 9 Bearing the above principles in mind, resolution of this case requires us to answer two separate, but interrelated, questions. First, we must determine whether the common law definitions of assault, when submitted to a jury in a single and separate definitional instruction, constitute alternative means of committing the crime of assault in whichever degree charged. Second, we must decide whether the case before us is an alternative means case requiring us to find substantial evidence supporting each of the alleged means of commission. We address, in turn, each of these inquiries.

A. MEANS OF COMMITTING CRIMINAL ASSAULT

¶ 10 Alternative means crimes are ones that provide that the proscribed criminal conduct may be proved in a variety of ways. As a general rule, such crimes are set forth in a statute stating a single offense, under which are set forth more than one means by which the offense may be committed. See State v. Arndt, 87 Wash.2d 374, 384, 553 P.2d 1328 (1976). Criminal assault is just such a crime.

¶ 11 The legislature has codified four degrees of criminal assault.⁵ Between the crimes of first, second, and third degree assault, the legislature has delineated a total of seventeen alternative means of commission. See RCW 9A.36.011-.031. As promulgated by the legislature, the second degree criminal assault statute articulates a single criminal offense⁶ and then provides six separate subsections by which the offense may be committed. RCW 9A.36.021(1)(a)-(f). Each of these six subsections represents an alternative means of committing the crime of second degree assault. Accord State v. Whitney, 108 Wash.2d 506, 510-11, 739 P.2d 1150 (1987) (noting that separate subsections of RCW 9A.44.040 provide alternative means by which to commit rape in the first degree); State v. Stockmyer, 83 Wash.App. 77, 86, 87, 920 P.2d 1201 (1996) ("`alternative means'" cases generally involve charges "under a statute which contains several alternative ways of committing one crime, and the defendant has been charged with conduct which may fulfill more than one [statutory] alternative"); State v. Martinez, 76 Wash.App. 1, 884 P.2d 3 (1994); State v. Barefield, 47 Wash.App. 444, 458-59, 735 P.2d 1339 (1987) (separate subsections within RCW 46.61.520 provide alternative means by which to commit the crime of vehicular homicide); State v. Gillespie, 41 Wash.App. 640, 643, 705 P.2d 808 (1985) (separate subsections within RCW 9A.56.020 provide alternative means by which to commit first degree theft).

¶ 12 In State v. Linehan, 147 Wash.2d 638, 56 P.3d 542 (2002),...