State v. Walden
| Decision Date | 14 December 1992 |
| Docket Number | No. 27446-5-I,27446-5-I |
| Citation | 841 P.2d 81,67 Wn.App. 891 |
| Court | Washington Court of Appeals |
| Parties | STATE of Washington, Respondent, v. John E. WALDEN, Appellant. |
Dawn Monroe, Washington Appellate Defender, Seattle, for appellant.
Seth Dawson, Snohomish Co. Pros. Atty., Seth Aaron Fine, Everett, for respondent.
John Walden appeals from a conviction on one count of second degree rape. He argues that the trial court erroneously failed to instruct the jury on the lesser included offense of fourth degree assault. We affirm.
On the night of February 24, 1990, the defendant, Walden, was horsing around with two acquaintances, Chad Pierce and the victim, R.I. The trio drank beer and set several small fires in the Lynnwood area. At some point Walden and R.I. skirmished. R.I. testified that Walden pushed him down a hill several times, causing him to hit a tree and land in sticker bushes. Walden then jumped on R.I. and placed him in a head lock. While holding R.I. in a head lock, Walden asked him if he wanted to die and told R.I. that if he wanted to get away, R.I. would have to suck on Walden's penis. R.I. declined both invitations, and Walden maintained the headlock, forcing R.I. to remove his clothes. R.I. eventually "gave in" and sucked on Walden's penis for about 20 seconds. R.I. then escaped and ran away, eventually reporting the incident to a police officer. Walden was arrested later that night.
At trial Walden testified that he did indeed struggle with R.I. He characterized the incident as "wrestling" and "pushing." He admitted placing R.I. in a headlock, but denied threatening R.I., forcing him to take his clothes off, or engaging in oral sexual intercourse. On cross examination, Walden claimed the events were "all kind of in fun".
The trial judge rejected Walden's request for an instruction on fourth degree assault as a lesser included offense of rape in the second degree. The jury found Walden guilty as charged of second degree rape by forcible compulsion. This appeal followed.
Walden contends that the trial court should have instructed the jury on fourth degree assault because the elements of fourth degree assault are all necessary elements of second degree rape and because the evidence supported an inference that he committed fourth degree assault. We hold that the trial court properly rejected the proposed instruction.
A defendant is entitled to an instruction on a lesser included offense if two requirements are satisfied: 1) each of the elements of the lesser crime must be necessary elements of the crime charged; and 2) the evidence in the case must support an inference that the defendant committed the lesser offense. State v. Speece, 115 Wash.2d 360, 362, 798 P.2d 294 (1990) (per curiam); State v. Liewer, 65 Wash.App. 641, 647, 829 P.2d 236 (1992). These requirements are known as the "legal" and "factual" prongs of the lesser-included test. State v. Rodriguez, 48 Wash.App. 815, 817, 740 P.2d 904, review denied, 109 Wash.2d 1016 (1987).
According to the legal prong of the lesser-included test, "[w]hile the lesser offense might not be a stated element of the greater offense, the lesser must at least be an 'inherent characteristic' of the greater one." State v. Curran, 116 Wash.2d 174, 183, 804 P.2d 558 (1991). In other words, one is entitled to an instruction on the lesser offense only if the charged crime "could not be committed" without also committing the lesser offense. Curran, at 183, 804 P.2d 558.
In this case, fourth degree assault is not an "inherent characteristic" of second degree rape such that the latter cannot be committed without also committing fourth degree assault. Fourth degree assault is defined as follows:
Assault in the fourth degree. (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.
RCW 9A.36.041. Because the term "assault" itself is undefined in the criminal code, Washington courts apply the common law definition to the crime. Peasley v. Puget Sound Tug & Barge Co., 13 Wash.2d 485, 504, 125 P.2d 681 (1942). Three definitions 1 of criminal assault have been recognized in Washington: (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 intends to inflict or is incapable of inflicting that harm. State v. Hupe, 50 Wash.App. 277, 282, 748 P.2d 263, review denied, 110 Wash.2d 1019 (1988); see also WPIC 35.50. Additionally, intent is a court-implied element of assault in the fourth degree. State v. Davis, 119 Wash.2d 657, 662, 835 P.2d 1039 (1992); State v. Sample, 52 Wash.App. 52, 54, 757 P.2d 539 (1988).
Second degree rape is defined as follows:
Rape in the second degree. (1) A person is guilty of rape in the second degree when, under circumstances not constituting rape in the first degree, the person engages in sexual intercourse with another person:
(a) By forcible compulsion;
(b) When the victim is incapable of consent by reason of being physically helpless or mentally incapacitated; or
(c) When the victim is developmentally disabled and the perpetrator is a person who is not married to the victim and who has supervisory authority over the victim.
RCW 9A.44.050. This statute includes no element of intent.
The crime of assault requires proof of intent; rape does not. Because one can be convicted of rape without proof of the existence of any mental state, while one cannot be convicted of assault without proof of the mental element of intent, the legal prong fails. See Sample, 52 Wash.App. at 55, 757 P.2d 539 (); State v. Markle, 118 Wash.2d 424, 435-36, 823 P.2d 1101 (1992) ().
Although intent is not an express statutory element of second degree rape, at first blush it might appear that intent is at least implicit in the crime of second degree rape by forcible compulsion. "Forcible compulsion" is defined as
physical force which overcomes resistance, or a threat, express or implied, that places a person in fear of death or physical injury to herself or himself or another person, or in fear that she or he or another person will be kidnapped.
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