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State v. Horton

October 28, 1996

STATE OF WASHINGTON, RESPONDENT,
v.
CURLEY HORTON, APPELLANT.



Appeal from Superior Court of King County. Docket No: 93-1-03331-8. Date filed: 12/19/95. Judge signing: Hon. Richard M. Ishikawa.

PER CURIAM. -- Curley Horton appeals his conviction for second degree assault while armed with a deadly weapon. He argues, among other things, that the jury instruction misstated the essential elements, requiring knowledge rather than intent. We accept the State's concession of error and reverse and remand for a new trial. We accelerate review under RAP 18.12.

By amended information, the State charged Curley Horton with two charges: second degree assault (domestic violence), while armed with a deadly weapon, and felony harassment. The jury acquitted Horton of felony harassment. Horton appeals, raising several arguments.

First, he argues the trial court erred by denying the motion to sever the assault from the felony harassment charge. But the jury acquitted Horton of felony harassment, plainly demonstrating its ability to differentiate between the two charges. In these circumstances, Horton cannot show that he was prejudiced by the court's refusal to sever. See CrR 4.4(b)(the court shall sever offenses when "severance will promote a fair determination of the defendant's guilt or innocence of each offense.") Horton is not entitled to relief.

Horton next challenges the jury instructions defining second degree assault. Because one of his two challenges requires reversal, we address only that argument.

Horton was charged with assaulting the victim on March 21, 1993, with a deadly weapon. RCW 9A.36.021(1)(c). Intent is an essential element of that crime, which the State bears the burden of proving beyond a reasonable doubt. State v. Eakins, 127 Wash. 2d 490, 496, 902 P.2d 1236 (1995).

However, several jury instructions tracked the language of the former version of the statute, which required knowledge rather than intent. *fn1 Instruction 6 states that a person commits second degree assault "when he knowingly assaults another with a deadly weapon." And the to-convict instruction stated the jury could convict Horton if they found he "knowingly assaulted" the victim.

The State concedes that failure to instruct the jury on the intent essential element constitutes a fatal defect. The concession is well-taken and we accept it. Misstatement of an essential element of the crime constitutes manifest constitutional error that may be raised for the first time on appeal. RAP 2.5(a)(3). We reverse the assault conviction and remand for a new trial at which the jury is properly instructed on all essential elements of the charge.

Finally, Horton argues the trial court imposed an unauthorized condition of community placement by ordering mandatory substance abuse evaluation and treatment. Because we reverse the assault conviction, the sentence and conditions of community placement are necessarily vacated. Thus, we cannot grant Horton effective relief and his challenge to the condition is moot.

We reverse Horton's conviction for second degree assault while armed with a deadly weapon ...


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