Opinion
No. 37923-6-II.
April 21, 2009.
Appeal from a judgment of the Superior Court for Clallam County, No. 08-1-00010-8, Kenneth D. Williams, J., entered June 13, 2008.
Reversed and remanded by unpublished opinion per Hunt, J., concurred in by Houghton and Quinn-Brintnall, JJ.
UNPUBLISHED OPINION
Jose Hernandez-Meza appeals his jury conviction for second degree attempted rape. He argues that the "to convict" jury instruction unconstitutionally omitted the intent element of attempted rape. The State concedes that this omission was reversible constitutional error. Accepting the State's concession, we reverse and remand for a new trial.
FACTS
Jose Hernandez-Meza met Lyla Smith outside a lounge after both had been drinking for several hours. Hernandez-Meza accompanied Smith to a party; afterward, Smith's friend Frank LaGambina drove them to Smith's house. Driving away, LaGambina had a feeling that something was wrong. LaGambina returned to Smith's house, heard a woman screaming, and pounded on the door. Smith answered and told LaGambina that Hernandez-Meza had tried to rape her.
The State charged Hernandez-Meza with second degree attempted rape. At Hernandez-Meza's jury trial, the State's witnesses testified as described above.
Hernandez-Meza testified that he could not remember what had occurred in Smith's house.
The trial court gave the jury the State's proposed "to convict" instruction, which stated that to convict the defendant, the jury must find the following elements beyond a reasonable doubt:
(1) That on or about the 6th day of January, 2008, the Defendant attempted to engage in sexual intercourse with Lyla Smith;
(2) by forcible compulsion; and
(3) That the acts occurred in the State of Washington.
Clerk's Papers (CP) at 30. A separate definitional instruction stated that a person commits second degree attempted rape "when, with intent to commit that crime, he or she does any act which is a substantial step toward the commission of that crime." CP at 29. Hernandez-Meza did not object to these instructions.
The jury found Hernandez-Meza guilty as charged. He appeals.
ANALYSIS
When a "to convict" instruction on attempted rape fails to include the intent element, the omission constitutes constitutional error, which the defendant may challenge for the first time on appeal. State v. Aumick, 126 Wn.2d 422, 429-30, 894 P.2d 1330 (1995). We agree with Hernandez-Meza and the State that the "to convict" instruction here unconstitutionally omitted the element of intent, which is an essential element of an attempted crime, here, attempted second degree rape. RCW 9A.28.020; see, e.g., State v. Chhom, 128 Wn.2d 739, 742, 911 P.2d 1014, 1016 (1996).
See also State v. Jackson, 62 Wn. App. 53, 59, 813 P.2d 156, 159 (1991) (omission of intent from "to convict" instruction on second degree attempted rape was constitutional error); and State v. Stewart, 35 Wn. App. 552, 554-55, 667 P.2d 1139 (1983) (omission of intent from "to convict" instruction for first degree attempted rape was constitutional error).
That a separate instruction defined "intent" did not cure the omission of this element from the "to convict" instruction: Jurors are not required to look beyond the "to convict" instruction for elements of a crime. State v. Smith, 131 Wn.2d 258, 262-63, 930 P.2d 917 (1997) (citing State v. Emmanuel, 42 Wn.2d 799, 819, 259 P.2d 845 (1953)). Thus, as the State properly concedes, omission of the intent element from the "to convict" instruction was reversible constitutional error.
Accordingly, we reverse and remand for a new trial.
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, PJ. and QUINN-BRINTNALL, J., concur.