Appeal from Superior Court of Snohomish County. Docket No: 95-8-00264-1. Date filed: 07/21/95. Judge signing: Hon. Linda Krese.
Petition for Review Denied April 2, 1997,
PER CURIAM. Tariq A. Musawwir appeals from the order of Disposition entered following his conviction of one count of unlawful display of a weapon. He argues that the conviction should be reversed and dismissed because unlawful display of a weapon is not a lesser included offense of assault in the second degree which was the crime charged. We affirm. Although unlawful display of a weapon is not a lesser included offense of assault in the second degree, Musawwir's counsel invited the error of which he now complains and reversal is unwarranted.
On January 4, 1995, 10-year-old Tariq Musawwir threatened 8-year-old Caitlen Peppones with a knife at the Cedar Way Elementary School. Musawwir was charged with one count of assault in the second degree on the theory that he intentionally assaulted Peppones with a deadly weapon. Following a finding of capacity, Musawwir was tried on the charged offense.
In closing, Musawwir's counsel argued that the State's witnesses were not credible and that assault in the second degree had not been proven. Counsel then opined:
I would submit to the Court if in fact the Court is considering something like this did happen, that it was most likely a violation of 9.41.270, which is an unlawful display of a weapon.
In her oral ruling, Judge Linda Krese indicated that the "primary question" before her was whether the facts presented constituted an assault in the second degree or an unlawful display of a weapon. Judge Krese stated that the possibility that the facts constituted only an unlawful display had occurred to her even before Musawwir's counsel raised the "suggestion". Because she concluded that the State had not proven that the knife was a per se deadly weapon, Judge Krese found Musawwir guilty of unlawful display of a weapon.
The State then asked the court to reconsider the possibility of conviction of assault in the fourth degree instead. Judge Krese indicated that she had not considered entering a conviction of assault in the fourth degree, but stated that an assault in the fourth degree may also have been committed. She observed that both unlawful display and assault in the fourth degree were gross misdemeanors and expressed unwillingness to change the finding that she had already entered. A standard range Disposition was imposed.
RCW 10.61.003 and .006 provide that a defendant can only be convicted of the offense charged, a crime of an inferior degree, or a lesser included offense. Musawwir was charged with assault in the second degree, but was convicted of unlawful display of a weapon. Musawwir argues that unlawful display of a weapon is neither an offense of inferior degree nor a lesser included offense of assault in the second degree. Therefore, Musawwir contends that the trial court committed reversible error in finding him guilty of the uncharged offense of unlawful display. This contention fails.
Although assault is an offense that consists of different degrees, unlawful display of a weapon is undisputedly not a lesser degree offense of assault in the second degree. RCW 10.61.003. Likewise, since the filing of the parties' briefs in this case, our Supreme Court has unequivocally ruled that unlawful display of a weapon is not a lesser included offense of assault in the second degree. State v. Lucky, 128 Wash. 2d 727, 912 P.2d 483 (1996). Accordingly, Musawwir is correct in asserting that he was convicted of a crime not charged.
Nonetheless, the State maintains that the error should not result in reversal. The State argues that Musawwir's counsel invited the error of which he now complains. The State points out that counsel's "suggestion" that Musawwir's conduct constituted unlawful display of a weapon not only caused the court to entertain conviction of that offense, but, once that suggestion was accepted, the court was reluctant to alter its analysis and find Musawwir guilty of the appropriate lesser degree offense of assault in the fourth degree.
Musawwir responds that his counsel did not invite the error by merely "suggesting" that his conduct may have constituted unlawful display of a weapon. He observes that in cases involving jury trials, invited error has been found where the defendant specifically requested and received an erroneous lesser included instruction. Because lay jurors are not presumed to know the law and are required to follow the instructions of the court, Musawwir concedes that a jury's reliance on improper instructions requested by the defense appropriately constitutes invited error. However, Musawwir maintains that because Judges are presumed to know the law, the mere suggestion in closing argument that a different crime was committed should not be viewed as the functional equivalent of submitting an erroneous jury instruction. This argument fails.
It is well established that counsel may not set up an error at trial and then complain of it on appeal. In re K.R., 128 Wash. 2d 129, 147, 904 P.2d 1132 (1995). Courts will deem an error waived "if the party asserting such error materially contributed thereto." In re K.R., 128 Wash. 2d at 147. The invitation need not be the sole cause of the error. State v. Armstrong, 69 Wash. App. 430, 435, 848 P.2d 1322, review denied, 122 Wash. 2d 1005, 859 P.2d 602 (1993). While defense counsel may have merely "suggested" that Musawwir only committed unlawful display of a weapon, the suggestion materially contributed to the trial court's decision to convict Musawwir of that offense. Admittedly, the invitation was not as clear and undeniable as the submission of an erroneous jury ...