Webster, J. Baker, J., concurs. Winsor, J. Pro Tem., dissents by separate opinion.
Davil*fn1 Davis appeals his convictions of second and fourth degree assault. He asserts that: (1) the information charging him with fourth degree assault should be dismissed because it failed to allege the essential elements of the crime, and (2) the second degree assault conviction should be reversed because the trial court erred in giving an aggressor instruction. We affirm.
The facts pertaining to the charge of fourth degree assault are as follows: On August 8, 1988, Davis and his girl friend, Darlynn, were entertaining four guests at their apartment. Darlynn became drunk and started arguing with Davis. She left to go on a walk with her friend, Sonya. They returned and Darlynn resumed her argument with Davis while Sonya went for a walk with someone else. Davis slapped Darlynn on the face. He testified he did this "to calm her down." Davis then asked the remaining guests to leave. When Sonya later returned to Davis's apartment, she found Darlynn crying.
Davis was charged with fourth degree assault for slapping his girl friend. The charge against Davis alleged:
That the defendant Darvil [ sic ] Davis, in King County, Washington, on or about August 1, 1988, did assault Darlynn Ferguson;
Contrary to RCW 9A.36.041, and against the peace and dignity of the state of Washington.
At no time did Davis's attorney make a motion to dismiss the fourth degree assault charge or request a bill of particulars. The jury convicted Davis of fourth degree assault.
Davis was also charged with two counts of second degree assault with a deadly weapon, a knife. Davis claimed that the stabbings occurred in self-defense. The State proposed
an aggressor instruction and Davis's attorney made no objection to the instruction.*fn2 The jury convicted Davis on the first count of second degree assault and acquitted him on the second count.
The first issue is whether the fourth degree assault charge is defective, either because the information failed to allege the element of intent, or because it did not notify the defendant of the manner in which he allegedly committed the assault. As a preliminary matter, we find that this claimed error is of constitutional magnitude and thus reviewable for the first time on appeal. See RAP 2.5(a)(3); State v. Scott, 110 ...