Appeal from Superior Court of King County. Docket No: 93-1-06193-1. Date filed: 04/05/94. Judge signing: Hon. Donald Haley.
Petition for Review Denied May 7, 1997,
Authored by H. Joseph Coleman. Concurring: Susan R. Agid, C. Kenneth Grosse.
The opinion of the court was delivered by: Coleman
COLEMAN, J. -- Mary Louise Roland appeals her conviction for assault in the second degree with a deadly weapon, arguing that the amended information was deficient in failing to include the intent element. While Washington applies two distinct standards to challenges to the information--strict preverdict and liberal postverdict--logic dictates the same result under either standard because the word assault either apprises a defendant of the intent element or it does not. We believe that it does. We thus follow State v. Chaten, 84 Wash. App. 85, 925 P.2d 631 (1996) where this court recently held that the intent element is implicit in the term "assault" even when applying the preverdict challenge standard.
Roland was charged with assault in the second degree with a deadly weapon. The charging information did not specifically identify the element of intent:
That the defendant MARY LOUISE ROLAND in King County, Washington on or about September 8, 1993, did assault Gazelle Williams with a deadly weapon, to-wit: a handgun;
Contrary to RCW 9A.36.021(1)(c), and against the peace and dignity of the State of Washington.
Before trial, Roland moved to dismiss the charges based on the failure to include the intent element in the information. Defense counsel argued that the standard for appellate review of the information was more liberal than the standard applied when challenged at trial. Defense counsel could not, however, cite a case for the proposition that without the word "intent," the trial court must dismiss. The court denied Roland's motion.
At trial, Roland claimed that the gun spontaneously discharged during a fight with the victim. Roland was found guilty of assault in the second degree with a deadly weapon.
We first consider whether the court erred in denying Roland's motion to dismiss the information because it failed to include the intent element. Roland argues that because he objected to the information pretrial, the information is defective under the strict standard. The State argues that intent is implicit in the term assault under any standard. We agree.
The prosecution must generally include all essential elements of an alleged crime in the charging document in order to provide defendant with notice of the allegations so that a defense can be properly prepared. State v. Kjorsvik, 117 Wash. 2d 93, 100-01, 812 P.2d 86 (1991). When the information is challenged before the verdict, a charging document is constitutionally adequate only if all essential elements of a crime, statutory and nonstatutory, are included. State v. Vangerpen, 125 Wash. 2d 782, 787, 888 P.2d 1177 (1995) (footnote omitted). "Merely citing to the proper statute and naming the offense is insufficient to charge a crime unless the name of the offense apprises the defendant of all of the essential elements of the crime." Vangerpen, 125 Wash. 2d at 787 (footnote omitted).
The question here is whether the term "assault," when strictly construed, apprises the defendant of the intent element. This question was recently addressed in Chaten, 84 Wash. App. at 87. Applying the strict standard, the Chaten court reasoned that because assault is commonly understood as an intentional act, the information was not defective even though it did not include the intent element. The Chaten court relied on decisions holding that under the liberal standard, the term "assault" adequately conveyed the notion of intent. Chaten, 84 Wash. App. at 87, citing State v. Davis, 119 Wash. 2d 657, 663, 835 P.2d 1039 (1992); State v. Hopper, 118 Wash. 2d 151, 158-59, 822 P.2d 775 (1992); State v. Dukowitz, 62 Wash. App. 418, 424, 814 P.2d 234 (1991), review denied, 118 Wash. 2d 1031, 828 P.2d 563 (1992); see also State v. Craven, 67 Wash. App. 921, 927, 841 P.2d 774 (1992); State v. Allen, 67 Wash. App. 824, 829, 840 P.2d 905 (1992); State v. Janes, 64 Wash. App. 134, ...