Opinion
No. 55538-3-I.
June 26, 2006.
Appeal from a judgment of the Superior Court for King County, No. 04-1-12651-3, Douglas D. McBroom, J., entered December 13, 2004.
Counsel for Appellant(s), J. Balderas-Ramos — Info Only (Appearing Pro Se), 2128 S. 276th Street, Apt. #c-204, Kent, WA 98032.
Gregory Charles Link, Washington Appellate Project, 1511 3rd Ave Ste 701, Seattle, WA 98101-3635.
Counsel for Respondent(s), James Allen Ferrell, King Co Courthouse, 516 3rd Ave Ste W554, Seattle, WA 98104-2362.
Affirmed by unpublished per curiam opinion.
To establish that an offense is a lesser included offense, the evidence in the case must support an inference that the lesser crime was committed. Because the evidence supports an inference that Santana Balderas-Ramos assaulted Kali Cruz, the trial court did not err in instructing the jury on fourth degree assault as a lesser included offense of felony violation of a court order. We affirm.
FACTS
Kali Cruz obtained a protection order against Santana Balderas-Ramos for herself and their 9-year old son on April 22, 2004. On June 8, 2004, police were summoned to a trailer owned by Cruz's brother. There they found Balderas-Ramos and Cruz.
The police initially detained Balderas-Ramos on a harassment charge. The State then filed charges for felony harassment — domestic violence and assault in the fourth degree. Later the State filed an amended information, replacing the assault charge with two charges for domestic violence felony violation of a court order, one with respect to Cruz and one with respect to their son.
At trial, Cruz testified that Balderas-Ramos had confronted her at a nearby grocery store parking lot. According to Cruz, Balderas-Ramos accused her of having sex with another individual, and said, `If you are [expletive] [that guy,] I will kill you both.' Cruz then testified that Balderas-Ramos grabbed her arm, leaving bruises.
At trial, it was disputed whether Balderas-Ramos had knowledge of the protection order sufficient to prove the felony violation of a court order charges. Balderas-Ramos was not present when the order was signed. Cruz testified that she gave her mother, Deborah Mitchell, a copy of the court order to give to Balderas-Ramos instead of having a professional process server do so or the Sheriff because Mitchell frequently acted as an intermediary between the them. Mitchell testified that she gave a copy of the order to Balderas-Ramos on June 3, 2004, but did not tell him what it was. On cross-examination, Mitchell testified that she never signed or filed an affidavit of service of the order or memorialized her delivery of the court order to Balderas-Ramos in any way. Cruz testified that she had one conversation with Balderas-Ramos about the protection order prior to the incident in which Balderas-Ramos stated, `We need to talk about this because I want to be able to see [our son].'
At the close of the trial, the State offered lesser included instructions on fourth degree assault for both counts of the felony violation of a court order. The court allowed the State's instructions and the jury found Balderas-Ramos guilty of felony harassment regarding Cruz, acquitted him on the charge regarding his son, and convicted him of assault in the fourth degree regarding Cruz. Balderas-Ramos appeals.
ANALYSIS
The test for determining whether an offense is a lesser included offense is as follows:
To establish that an offense is a lesser included offense, the rule is: first, each of the elements of the lesser offense must be a necessary element of the offense charged; second, the evidence in the case must support an inference that the lesser crime was committed.
State v. Berlin, 133 Wn.2d 541, 548, 947 P.2d 700 (1997) (citing State v. Workman, 90 Wn.2d 443, 447-48, 584 P.2d 382 (1978)) (emphasis in original).
Here, the parties do not contest assault in the fourth degree was a necessary element of felony violation of a court order as charged in this case. Instead, Balderas-Ramos challenges the sufficiency of the evidence supporting the fourth degree assault instruction.
When determining if the evidence at trial was sufficient to support the giving of a lesser included offense instruction, we are to view the supporting evidence in the light most favorable to the party that requested the instruction. In other words, we must ask when reading the evidence in the light most favorable to the State, whether the evidence supports an inference that Balderas-Ramos committed fourth degree assault. The evidence at trial was sufficient to support the inference that Balderas-Ramos committed fourth degree assault. `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.' Cruz testified at trial that Balderas-Ramos grabbed her arm, leaving bruises. When read in the light most favorable to the State, this testimony supports an inference that Balderas-Ramos assaulted Cruz. Contrary to Balderas-Ramos's arguments, the fact that the jury acquitted him on the greater charge of felony violation of a court order has no bearing on whether the facts in evidence supported the inference that Balderas-Ramos committed fourth degree assault. Balderas-Ramos relies heavily on language from the case State v. Fernandez-Medina, which states that when a defendant is moving to add a lesser included offense instruction, `the evidence must affirmatively establish the defendant's theory of the case it is not enough that the jury might disbelieve the evidence pointing to guilt.' This is just another way of saying the evidence must support the inference that the lesser offense was committed. The language in Fernandez-Medina comes from State v. Fowler. In Fowler, the defendant sought to have a lesser included offense instruction added; however, the evidence Fowler presented in support of his theory on the lesser included offense served only to discredit the State's theory and failed to support all the elements of the lesser included offense. Thus, the court concluded:
State v. Fernandez-Medina, 141 Wn.2d 448, 455-56, 6 P.3d 1150 (2000).
Fernandez-Medina, 141 Wn.2d at 456.
State v. Fowler, 114 Wn.2d 59, 785 P.2d 808 (1990).
It is not enough that the jury might simply disbelieve the State's evidence. Instead, some evidence must be presented which affirmatively establishes the defendant's theory on the lesser included offense before an instruction will be given.
Fowler, 114 Wn.2d at 67.
Again, this is just another way of saying the evidence must support the inference that the lesser offense was committed. The evidence in this case supported the inference that Balderas-Ramos assaulted Cruz.
For the above reasons, the judgment and sentence is affirmed.
GROSSE, DWYER and COX, JJ.