Opinion
66316-0-I
06-04-2012
STATE OF WASHINGTON, Respondent, v. DERRICK MICAH MORRIS, Appellant.
UNPUBLISHED
Cox, J.
Second degree assault by strangulation requires the State to prove an assault of another by strangulation of that person. "Strangulation" means "to compress a person's neck, thereby obstructing the person's blood flow or ability to breathe, or doing so with the intent to obstruct the person's blood flow or ability to breathe . . . ."
RCW 9A.04.110(26) (emphasis added).
N.K., the victim of the assault in this case testified that Derrick Morris grabbed her by the neck when she tried to escape from his vehicle, consequently obstructing her ability to breathe. Accordingly, the State bore its burden to prove beyond a reasonable doubt all essential elements of the charged offense. There was no mandatory presumption that relieved the State of this burden. We affirm.
Morris picked up N.K. on Aurora Avenue with the aim of engaging her in an act of prostitution. According to her testimony at trial, he told N.K. that he was an undercover police officer, but would not arrest her if she had sex with him. N.K. did not believe Morris and opened the car door to get out. As she did so, Morris grabbed her by the neck, holding her in the bend of his elbows, and choked her. She began to lose consciousness, but was eventually able to free herself and escape.
The State charged Morris by amended information with second degree assault with the intent to commit rape. In the alternative, the State also charged second degree assault by strangulation.
At trial, Morris also testified. According to Morris, he picked up N.K. and when they got into a disagreement about the price of her services, she hit him. As N.K. exited his car, he pushed her out and called her derogatory names. He denied choking her.
During deliberations, the jury submitted the following question to the court:
On [the second degree assault by strangulation to-convict instruction] in the Courts [sic] Instructions to the Jury, does it require intentional strangulation or can the strangulation be accidental as a result of the intentional assault?
Clerk's Papers at 55.
Morris argued that the to-convict instruction required the strangulation itself to be intentional and that the court should so instruct the jurors. The trial court disagreed, and instead responded: "Please read [the to-convict instruction] in accordance with Instructions 5, 6, and 13." These instructions defined assault, intent, and strangulation, respectively.
Id. at 56.
The jury found Morris guilty of second degree assault by strangulation and acquitted him of second degree assault with the intent to commit rape. The trial court denied Morris's motion for an arrest of judgment or a new trial, which he based on the argument that second degree assault by strangulation requires both an intent to assault and an intent to strangle.
Morris appeals.
JURY INSTRUCTIONS
Morris argues that the instruction for the second degree assault by strangulation charge in this case created a mandatory presumption that relieved the State of its burden to prove the elements of that charge. Specifically, he argues that the State was required to prove that he intentionally strangled N.K. in order to convict him of second degree assault by strangulation. Because the to-convict instruction did not include an intent element, he claims his conviction cannot stand. We disagree.
It is reversible error to instruct the jury in a manner that relieves the State of its burden to prove beyond a reasonable doubt every essential element of a criminal offense. This court analyzes a challenged jury instruction by considering the instructions as a whole and reading the challenged portions in context. Alleged errors in jury instructions are reviewed de novo.
State v. Hayward, 152 Wn.App. 632, 641-42, 217 P.3d 354 (2009) (quoting State v. Pirtle, 127 Wn.2d 628, 656, 904 P.2d 245 (1995)).
Id. at 642 (citing Pirtle, 127 Wn.2d at 656-57).
State v. Becklin, 163 Wn.2d 519, 525, 182 P.3d 944 (2008).
"A mandatory presumption is one that requires the jury 'to find a presumed fact from a proven fact.'" To determine whether a jury instruction creates a mandatory presumption, the court examines whether a reasonable juror would interpret the presumption as mandatory. Mandatory presumptions violate a defendant's right to due process if they relieve the State of its obligation to prove all of the elements of the crime charged beyond a reasonable doubt.
Hayward, 152 Wn.App. at 642 (quoting State v. Deal, 128 Wn.2d 693, 699, 911 P.2d 996 (1996)).
Id. (citing Deal, 128 Wn.2d at 701).
Id.; Deal, 128 Wn.2d at 701.
When interpreting a statute, a court's fundamental objective is to ascertain and carry out the legislature's intent. "This involves giving effect to the plain meaning of the statute, if any, by taking into account the ordinary meaning of the words used as well as the context in which the statute appears, including related provisions." In determining the plain meaning of a statute, the court cannot add words or clauses where the legislature has chosen not to include them. If the statute is unambiguous, the court's inquiry is at an end.
In re Det. of Hawkins, 169 Wn.2d 796, 801, 238 P.3d 1175 (2010) (citing State v. Jacobs, 154 Wn.2d 596, 600, 115 P.3d 281 (2005)).
Id. (citing Jacobs, 154 Wn.2d at 600).
State v. J.P., 149 Wn.2d 444, 450, 69 P.3d 318 (2003) (quoting State v. Delgado, 148 Wn.2d 723, 727, 63 P.3d 792 (2003)).
State v. Armendariz, 160 Wn.2d 106, 110, 156 P.3d 201 (2007).
RCW 9A.36.021 defines assault in the second degree:
(1) A person is guilty of assault in the second degree if he or she, under circumstances not amounting to assault in the first degree:
(a)Intentionally assaults another and thereby recklessly inflicts substantial bodily harm; or
(b)Intentionally and unlawfully causes substantial bodily harm to an unborn quick child by intentionally and unlawfully inflicting any injury upon the mother of such child; or
(c)Assaults another with a deadly weapon; or
(d)With intent to inflict bodily harm, administers to or causes to be taken by another, poison or any other destructive or noxious substance; or
(e)With intent to commit a felony, assaults another; or
(f)Knowingly inflicts bodily harm which by design causes such pain or agony as to be the equivalent of that produced by torture; or
(g)Assaults another by strangulation or suffocation."Assault" is not defined in the statute. But our courts have held that a "specific intent either to create apprehension of bodily harm or to cause bodily harm is an essential element" of second degree assault.
(Emphasis added.)
State v. Byrd, 125 Wn.2d 707, 713, 887 P.2d 396 (1995).
The legislature has defined "strangulation." RCW 9A.04.110(26) states that "'[s]trangulation' means to compress a person's neck, thereby obstructing the person's blood flow or ability to breathe, or doing so with the intent to obstruct the person's blood flow or ability to breathe . . . ." Thus, under the plain language of the statute, a person is guilty of second degree assault by strangulation in two circumstances. First, if he intentionally assaults another by compressing that person's neck and actually obstructing either the person's blood flow or ability to breath. Second, if he intentionally assaults another by compressing that person's neck with the intent to obstruct the person's blood flow or ability to breath. Therefore, intent is only necessary if the defendant does not actually obstruct either the victim's blood flow or ability to breath.
Here, the to-convict instruction tracked the first circumstance of the statutory language for second degree assault by strangulation. It required the jury to find that the State proved beyond a reasonable doubt:
(1) That on or about February 11, 2010, the defendant intentionally assaulted N.W.K. by strangulation; and
(2) That the act occurred in the State of Washington."Intent, " "assault, " and "strangulation" were each separately defined in the following related instructions, none of which Morris challenges on appeal:
Clerk's Papers at 44.
No. 5
An assault is an intentional touching or striking or cutting or shooting of another person, with unlawful force, that is harmful or offensive regardless of whether any physical injury is done to the person. A touching or striking or cutting or shooting is offensive if the touching or striking or cutting or shooting would offend an ordinary person who is not unduly sensitive.
An assault is also an act, with unlawful force, done with intent to inflict bodily injury upon another, tending but failing to accomplish it and accompanied with the apparent present ability to inflict the bodily injury if not prevented. It is not necessary that bodily injury be inflicted.
An assault is also an act, with unlawful force, done with the intent to create in another apprehension and fear of bodily injury, and which in fact creates in another a reasonable apprehension and imminent fear of bodily injury even though the actor did not actually intend to inflict bodily injury.
No. 6
A person acts with intent or intentionally when acting with the objective or purpose to accomplish a result that constitutes a crime.
No. 13
Strangulation means to compress a person's neck in a manner that obstructs the person's blood flow or ability to breathe, or to compress a person's neck with the intent to obstruct the person's blood flow or ability to breathe.Read together, these instructions accurately reflect what the State was required to prove for the charge of second degree assault by strangulation. The only intent that the State was required to prove was that necessary for assault. Under the circumstances of this case, where there is evidence that Morris compressed the victim's neck and her ability to breathe was actually obstructed, there is no additional requirement to prove Morris intended that result.
Id. at 34-35, 42.
Morris argues that neither RCW 9A.04.110(26) nor the jury instructions supplies the intent necessary for strangulation. But, as we have explained above, there is no intent necessary for strangulation in this case. Both the jury instruction and the statute's definition of strangulation distinguish between the intent necessary when the defendant actually obstructs the victim's blood flow or ability to breathe, and when he does not. The plain words of the statute and the jury instruction only require "intent" in the latter case. For the former, no intent is necessary.
Morris also argues that, because RCW 9A.36.021(1)(g) is silent on the intent necessary for the strangulation element, and because strict liability crimes are disfavored, the Legislature intended to require an intent to strangle. But because intent is required for the assault, this is not a strict liability crime. The fact that there is no additional intent requirement in RCW 9A.36.021(1)(g) for the strangulation is irrelevant.
Next, Morris argues that RCW 9A.36.021(1)(g) is ambiguous and, under the rule of lenity, must be resolved in his favor. We again disagree.
The statute states that "[a] person is guilty of assault in the second degree if he or she . . . [a]ssaults another by strangulation or suffocation."Morris claims this is ambiguous because it can be read in one of two ways: either requiring a specific intent to strangle or not requiring a specific intent to strangle. Under the plain words of this statute, there is no intent requirement other than that required for assault. In any event, the definition of strangulation found in RCW 9A.04.110(26) makes it patently clear that there is no additional intent requirement under the facts of this case. That is because Morris obstructed N.K.'s blood flow or ability to breathe so the acts here fall under the first prong of the definition of strangulation.
Finally, Morris argues that State v. Hayward and State v. Goble require reversal. They do not.
152 Wn.App. 632, 217 P.3d 354 (2009).
131 Wn.App. 194, 126 P.3d 821 (2005).
In each of those cases, the court held that the trial court's instructions conflated the intent necessary to prove the crimes at issue. That is not the case here. These instructions defining assault and strangulation correctly stated that intent was only necessary for the assault portion of the charge, not the strangulation portion. Consequently, Hayward and Goble are not helpful.
Hayward, 152 Wn.App. at 644-45 (instruction was reversible error because it effectively collapsed second degree assault into an offense with only a single mental state instead of requiring two mental states, one for the assault and one for the result); Goble, 131 Wn.App. at 196 (instruction allowed the jury to presume that defendant knew the assaulted deputy was acting in his official capacity during the incident if it found he intentionally assaulted the deputy, which conflated the intent and knowledge elements required under the to-convict instruction into a single element).
We affirm the judgment and sentence.