Opinion
No. 28758-1-III.
December 16, 2010. UNPUBLISHED OPINION
Appeal from a judgment of the Superior Court for Spokane County, No. 09-1-03504-1, Salvatore F. Cozza, J., entered December 21, 2009.
Affirmed by unpublished opinion per Sweeney, J., concurred in by Korsmo, A.C.J., and Brown, J.
An instruction on an inferior degree offense is proper when (1) the statutes for the charged offense and the proposed inferior degree offense prohibit the same conduct, (2) the proposed offense is an inferior degree of the charged offense, and (3) evidence supports a finding that the defendant committed only the inferior offense. State v. Fernandez-Medina, 141 Wn.2d 448, 454, 6 P.3d 1150 (2000). The State charged the defendant here with second degree assault. He proposed an instruction on fourth degree assault. But the evidence does not show that the defendant committed only fourth degree assault. It shows, instead, that he committed either an assault that resulted in a broken bone or no assault at all. The trial court, then, properly rejected the proposed instruction. And we affirm his conviction for second degree assault.
FACTS
The State charged Monte Lyon with second degree assault for pushing his girl friend, Karen Cummings. The assault broke her wrist.
Mary Forcier lives next to Mr. Lyon and Ms. Cummings. Ms. Forcier heard arguing and looked out her bedroom window and into her neighbors' kitchen through their open sliding glass door. She saw Mr. Lyon throwing things. She also thought she saw Mr. Lyon push Ms. Cummings to the floor. So she called 911.
An ambulance responded and took Ms. Cummings to the hospital. She had a broken wrist. Mr. Lyon told police that he and Ms. Cummings had been drinking all evening at a tavern. He said he got upset when a man hit on Ms. Cummings and Ms. Cummings did not quickly turn the man away. Mr. Lyon said he and Ms. Cummings left the tavern, went home, and had an argument. He claimed he threw a glass at the wall but did not touch Ms. Cummings. He said Ms. Cummings was drunk and might have fallen and injured herself.
Ms. Cummings told police that Mr. Lyon threw things at her and threw her across the kitchen into a wall. She told an emergency room doctor that she hurt her wrist when she was pushed to the ground. Later she told a detective that Mr. Lyon had "moved her" and that she had tripped and fallen over a broom and dust pan. Report of Proceedings (RP) at 150-51, 183.
At trial, she testified that she had lied about Mr. Lyon pushing her. She said that she had tried to cut herself with a piece of broken glass, that Mr. Lyon tried to grab the glass out of her hand, and that she pulled away from him and fell. Mr. Lyon proposed an instruction on fourth degree assault. He contended he was entitled to the instruction because the evidence showed he committed a simple assault by throwing things at Ms. Cummings. The judge denied the request because he could not recall any evidence that Mr. Lyon threw things at Ms. Cummings. He thought the evidence showed Ms. Cummings's broken wrist was the result of either an assault or an accidental trip and fall. So he concluded that the evidence proved either second degree assault or no crime at all:
Is there any evidence in the record by which a rational juror could find that an assault took place in which no bones are broken? Is there any evidence they can say, Well, she didn't really suffer a broken wrist? That is the problem. Once you got the broken bone, then you got the substantial harm. It is either second degree assault or nothing, by my estimation, under that second prong of the factual prong of [ State v. Workman, 90 Wn.2d 443, 584 P.2d 382 (1978)].
RP at 203. The judge then instructed the jury on only second degree assault. And the jury found Mr. Lyon guilty.
DISCUSSION
Fourth Degree Assault Instruction
Mr. Lyon contends that he was entitled to an instruction on a lesser included offense. Mr. Lyon was charged with second degree assault, and he proposed an instruction on fourth degree assault — an inferior degree offense to second degree assault.
A "lesser included" offense differs from an "inferior degree" offense. And so the legal analysis is, of course, different. Simply put, it is not possible to commit a greater offense to a lesser included offense without also committing that lesser included offense. State v. Bishop, 90 Wn.2d 185, 191, 580 P.2d 259 (1978) (quoting State v. Roybal, 82 Wn.2d 577, 583, 512 P.2d 718 (1973)). It is, however, possible to commit some greater degree offense but not commit an "inferior degree" offense. State v. McPhail, 39 Wash. 199, 203, 81 P. 683 (1905). An instruction on a lesser included offense is, therefore, proper when (1) the elements of the lesser offense are necessary elements of the charged offense, and (2) evidence supports an inference that the lesser crime was committed. Fernandez-Medina, 141 Wn.2d at 454. And an instruction on an inferior degree offense is proper when (1) the statutes for the charged offense and the proposed inferior degree offense prohibit the same conduct, (2) the proposed offense is an inferior degree of the charged offense, and (3) evidence supports a finding that the defendant committed only the inferior offense. Id.
The request here was for an instruction on a crime of an inferior degree — fourth degree assault. And the factual prong of that test is all that is at issue here on appeal. That is, whether there is evidence in this record to support only the elements of fourth degree assault. We review de novo the trial judge's conclusion that the factual prong was missing. See id.; State v. Dearbone, 125 Wn.2d 173, 178, 883 P.2d 303 (1994).
The factual prong requires a showing that the defendant committed only the inferior degree crime rather than the greater degree crime. Fernandez-Medina, 141 Wn.2d at 461. Mr. Lyon committed fourth degree assault "if, under circumstances not amounting to assault in the . . . second . . . degree . . . he . . . assault[ed] another." RCW 9A.36.041. He committed second degree assault if he intentionally assaulted another and thereby recklessly inflicted substantial bodily harm, like a broken bone. RCW 9A.36.021(1)(a); RCW 9A.04.110(4)(b). The factual prong, then, is satisfied and Mr. Lyon is entitled to a fourth degree assault instruction if, considering all the evidence presented at trial, the record supports an inference that he committed an assault that did not inflict substantial bodily harm. Fernandez-Medina, 141 Wn.2d at 456.
Mr. Lyon contended at trial that evidence that he threw things at Ms. Cummings was substantial evidence of fourth degree assault. But Mr. Lyon threw things at Ms. Cummings only after he had already thrown her against a wall, injuring her arm:
She told me [a responding officer] that Mr. Lyon had threw [sic] her across the kitchen. She landed hard against a wall with her arm hitting the wall. She told me that she was on the kitchen floor when he was throwing things at her.
RP at 95. That evidence is proof of one second degree assault (throwing Ms. Cummings thereby injuring her arm) and multiple fourth degree assaults (throwing things at Ms. Cummings). It is not evidence that Mr. Lyon committed only fourth degree assault to the exclusion of second degree assault. Fernandez-Medina, 141 Wn.2d at 461.
On appeal, Mr. Lyon asserts that Ms. Cummings's testimony that he tried to grab broken glass from Ms. Cummings's hand shows he committed fourth degree assault. Assuming, as Mr. Lyon does, that grabbing at Ms. Cummings's hand was an assault, the assault caused Ms. Cummings to pull away, fall, and break her wrist. In other words, Ms. Cummings would not have broken her wrist had Mr. Lyon not tried to grab the glass from her hand.
The record does not support an inference that Mr. Lyon committed only an assault that did not inflict substantial bodily harm. It shows he grabbed, threw, or pushed Ms. Cummings and thereby broke her wrist. Alternatively, it shows she broke her wrist because she was drunk and fell without Mr. Lyon touching her or because he moved her (apparently with her consent), and she tripped. These alternative scenarios suggest there was no assault at all. They suggest instead an accidental injury.
Mr. Lyon has failed to satisfy the factual prong of the inferior degree offense test. The trial court, then, properly denied his request for a fourth degree assault instruction. Statement of Additional Grounds
Mr. Lyon renews his argument that Ms. Cummings's broken wrist was the result of an accident. His argument implicates the burden of persuasion not the burden of production; we pass on the latter but not the former. State v. Huff, 64 Wn. App. 641, 655, 826 P.2d 698 (1992). The State produced substantial evidence of second degree assault.
Mr. Lyon also suggests that his neighbor's testimony was not credible because she thought she saw him help Ms. Cummings move her belongings to her new home when he was in jail. Credibility issues are resolved by the jury. State v. Thomas, 150 Wn.2d 821, 874, 83 P.3d 970 (2004).
We affirm Mr. Lyon's conviction for second degree assault.
A majority of the panel has determined that this opinion will not be printed in the Washington Appellate Reports but it will be filed for public record pursuant to RCW 2.06.040.
KORSMO, A.C.J., BROWN, J., concur.