Appeal from Superior Court, Snohomish (89-1-00088-6) County; Honorable James Allendoerfer, Judge. Judgment Date: 11-20-91.
Dolliver, J., Durham, C.j., Smith, Guy, Johnson, Madsen, Alexander, Talmadge, Sanders, J.j., concurring.
DOLLIVER, J.--Defendant challenges for the first time on appeal a jury instruction's statement of the elements of second degree assault. Reconfirming our decision in State v. Byrd, 125 Wash. 2d 707, 712, 887 P.2d 396 (1995), we hold the trial court's failure to provide a specific intent instruction constituted reversible error. We write particularly to clarify the two-step inquiry performed by an appellate court when considering a jury instruction error first raised on appeal.
This case arises from the conviction of Defendant Rondo Eastmond for second degree assault with a deadly weapon under RCW 9A.36.021(1)(c), which states:
A person is guilty of assault in the second degree if he or she, under circumstances not amounting to assault in the first degree:
(c) Assaults another with a deadly weapon . . . .
The factual dispute at trial concerned whether Defendant pointed his gun menacingly at a restaurant cashier to demand she return his bottle of wine or whether he tried to check the weapon by handing her the butt of the gun.
The State proposed a jury instruction for two forms of assault: (1) an attempt to cause bodily injury by unlawful force, accompanied by the apparent present ability to cause such harm, and (2) an attempt to cause fear and apprehension of bodily injury by unlawful force, regardless of any intent or ability to inflict injury. See State v. Byrd, 125 Wash. 2d 707, 712-13, 887 P.2d 396 (1995). To prove assault by attempt to cause injury, the State must show specific intent to cause bodily injury but need not provide evidence of injury or fear in fact. Byrd, 125 Wash. 2d at 713; State v. Frazier, 81 Wash. 2d 628, 631, 503 P.2d 1073 (1972). Assault by attempt to cause fear and apprehension of injury requires specific intent to create reasonable fear and apprehension of bodily injury. Byrd, 125 Wash. 2d at 713. A jury may infer specific intent to create fear from the defendant's pointing a gun at the victim, unless the victim knew the weapon was unloaded, but not from mere display. State v. Miller, 71 Wash. 2d 143, 146, 426 P.2d 986 (1967); State v. Karp, 69 Wash. App. 369, 374-75, 848 P.2d 1304, review denied, 122 Wash. 2d 1005, 859 P.2d 602 (1993); State v. Murphy, 7 Wash. App. 505, 511, 500 P.2d 1276, review denied, 81 Wash. 2d 1008 (1972).
The current Washington Pattern Jury Instruction for assault reflects the necessity of a specific intent instruction:
[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.]
WPIC 35.50 (2d ed. 1994) (emphasis added); see Byrd, 125 Wash. 2d at 711 n.2.
The trial court refused the State's assault instruction and instead ...