Opinion
No. 34207-3-II.
April 17, 2007.
Appeal from a judgment of the Superior Court for Pierce County, No. 05-1-02245-2, D. Gary Steiner, J., entered December 9, 2005.
Affirmed by unpublished opinion per Penoyar, J., concurred in by Houghton, C.J., and Van Deren, J.
On May 8, 2005, Jeffrey Crenshaw visited his girlfriend, Connie Tinitali, in a Tacoma hotel room. He had a gun and, according to his girlfriend, was acting suicidal. At a certain point, the gun discharged and a bullet struck Tinitali in the abdomen. A jury convicted Crenshaw of second degree assault and second degree possession of a firearm. He appeals, arguing that "accident" is a recognized defense to intentional assault, and the trial court erred by (1) not requiring the State to disprove "accident" beyond a reasonable doubt and (2) not giving Crenshaw's proposed "accident" instructions to the jury. Crenshaw's arguments are unpersuasive; we affirm.
FACTS
Crenshaw and Tinitali dated off and on for years. On May 8, 2005, Crenshaw visited Tinitali in her hotel room. Tinitali testified that she heard Crenshaw in the bathroom gagging, and when she entered she saw that he had a gun in his mouth.
Tinitali was able to calm Crenshaw down, and he returned to the room. Crenshaw later testified that Tinitali was on the bed and he was standing at the foot of the bed with the gun to his head and the hammer cocked. He was pacing back and forth while Tinitali answered her phone. Crenshaw held the gun in his right hand, which is missing an index finger. Both Crenshaw and Tinitali testified that he never intentionally pointed the gun at her or threatened her but, about a minute into Tinitali's phone conversation, the gun discharged and Tinitali was shot in the abdomen.
The State charged Crenshaw with first degree assault (including a firearm enhancement) and first degree unlawful possession of a firearm. The possession charge was later amended to second degree possession of a firearm.
Crenshaw proposed three jury instructions on an accident defense:
Instruction No. 22
It is a defense to a charge of assault that the assault was excusable as defined in this instruction.
An assault is excusable when committed by accident or misfortune in doing any lawful act by lawful means, without criminal negligence, or without any unlawful intent.
The State has the burden of proving the absence of excuse beyond a reasonable doubt. If you find that the State has not proved the absence of this defense beyond a reasonable doubt, it will be your duty to return a verdict of not guilty. Instruction No. 23
When a person commits an act or makes an omission through misfortune or by accident under circumstances that show neither criminal intent nor purpose or criminal negligence he does not thereby commit a crime.
1 Clerk's Papers (CP) at 67-68.
Instruction No. 32
Accident means a sudden unexpected or unintentional happening, consequence or event from either a known or unknown cause.
2 CP at 107. Instruction 22 is a modification of the pattern instruction for excusable homicide. 11 Washington Practice: Washington Pattern Jury Instructions: Criminal 15.01, at 169 (2d ed. 1994) (WPIC).
The trial court declined to give Crenshaw's proposed instructions because it did not believe that they articulated the present status of the law. Crenshaw objected, arguing that the theory of his case was accident and that accident is a recognized defense in Washington caselaw. The trial court disagreed.
The jury convicted Crenshaw of second degree assault and second degree unlawful possession of a firearm, and it returned a special verdict that Crenshaw was armed with a firearm at the time of the assault. The court calculated Crenshaw's offender score at 4 and sentenced him within the standard range (53.5 months). He now appeals.
ANALYSIS
Crenshaw argues that Washington caselaw recognizes the defense of accident, citing State v. Hendrickson, 81 Wn. App. 397, 399, 914 P.2d 1194 (1996), for the proposition that an unintentional assault or killing can be excused by accident. He argues that the trial court failed to recognize this defense and improperly gave only the pattern state of mind instructions for assault in the first, second and third degrees.
The trial court instructed on the intent required to support the second degree assault charge, of which Crenshaw was convicted, as follows: Instruction No. 14
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 intentionally assaults another and thereby recklessly inflicts substantial bodily harm or assaults another with a deadly weapon.
1 CP at 59; WPIC 35.10. Instruction No. 15
To convict the defendant of the crime of assault in the second degree, each of the following elements of the crime must be proved beyond a reasonable doubt:
(1) That on or about the 8th day of May, 2005, the defendant:
(a) intentionally assaulted Connie Tinitali and thereby recklessly inflicted substantial bodily harm. . .
1 CP at 60; WPIC 35.12. Instruction No. 17
A person is reckless or acts recklessly when he or she knows of and disregards a substantial risk that a wrongful act may occur and the disregard of such substantial risk is a gross deviation from conduct that a reasonable person would exercise in the same situation.
Recklessness also is established if a person acts intentionally or knowingly.
1 CP at 62; WPIC 10.03.
In finding Crenshaw guilty under these instructions, the jury necessarily found beyond a reasonable doubt that he deliberately assaulted Tinitali and thus found beyond a reasonable doubt that the assault was not an accident. Under the facts in this case, Crenshaw could have been found to have acted either intentionally or accidentally, but not both. One finding here necessarily excludes the other.
While Crenshaw has raised interesting issues about appropriate burdens and instructions in cases involving accident or mistake defenses, the facts in this particular case render these arguments academic and we leave them for another day.
Affirmed.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
HOUGHTON, C.J. VAN DEREN, J. concur