Appeal from Clark Superior Court. Docket No: 11-1-01910-1. Judge signing: Honorable Daniel L Stahnke. Judgment or order under review. Date filed: 01/04/2013.
Gregory C. Link (of Washington Appellate Project ), for appellant.
Anthony F. Golik, Prosecuting Attorney, and Anne M. Cruser, Deputy, for respondent.
Concurring: Lisa Worswick, Bradley A. Maxa.
[185 Wn.App. 324] Linda
[¶1] A jury found Michael Todd Boswell guilty of two counts of attempted first degree murder. Boswell appeals, arguing that (1) double jeopardy bars his conviction for two counts of attempted murder, (2) the trial court erred by refusing to instruct the jury on attempted third degree assault as a lesser included offense, and (3) the jury instructions on attempted first degree murder omitted an essential element of the crime. Because we hold that the unit of prosecution for attempted murder is based on a course of conduct, Boswell's convictions for two counts of attempted murder do not violate double jeopardy. We further hold that third degree assault is not a lesser included offense of attempted murder and that the jury instructions included all essential elements of attempted first degree murder. Accordingly, we affirm.
[¶2] Boswell and Jessica Fix had been in a romantic relationship. About a month before November 14, 2011, Fix told Boswell that she wanted to end their relationship. Boswell became very upset and was crying, so Fix decided to stay with him. Just prior to November 14, Fix again discussed ending their relationship, but Boswell again became upset and Fix did not end the relationship.
[¶3] Early in the morning on November 14, Fix returned home from working the prior evening, and Boswell made [185 Wn.App. 325] her peppermint tea. After drinking the tea, Fix became nauseated, began vomiting, and then fell asleep on the living room couch.
[¶4] Later, Fix woke up with a loud ringing in her ears and blood dripping from her head. She saw Boswell sitting on the opposite side of the couch holding a gun. Fix left the house and went to the hospital. At the hospital, Fix was treated for a brain hemorrhage and liver failure. Doctors determined that Fix's head wound was consistent with a gunshot wound and that her liver failure was caused by an extremely high dose of acetaminophen.
[¶5] The State charged Boswell with two counts of attempted first degree murder. Count 1 alleged that Boswell " on or about November 14, 2011, with a premeditated intent to cause the death of another person ... did an act which was a substantial step toward the commission of that crime." Clerk's Papers (CP) at 62. Count 2 alleged that Boswell " on or about November 14, 2011, at a separate time than the acts charged in Count 1, with a premeditated intent to cause the death of another person ... did an act which was a substantial step toward the commission of that crime." CP at 62.
[¶6] At trial, Boswell testified that Fix's injuries were caused by his failed suicide attempts. First, Boswell crushed a large amount of Tylenol and methocarbamol in a glass and then used a second glass as a shaker to help dissolve the pills in the liquid. Then, he inadvertently put Fix's tea in the second glass containing a large amount of Tylenol residue. He became ill after consuming the medication he mixed for himself but failed in his suicide attempt. After his failed suicide attempt with the Tylenol, Boswell decided to attempt to take his own life with a gun. Boswell's arm slipped when he attempted to shoot himself, and he accidentally shot Fix in the head.
[¶7] Boswell requested that the trial court instruct the jury on third degree assault as a lesser included offense of the attempted first degree murder predicated on the shooting [185 Wn.App. 326] . The trial court concluded that third degree assault was not a lesser included offense of attempted first degree murder and did not instruct the jury on third degree assault.
[¶8] The trial court gave the following " to convict" instruction on the attempted first degree murder charge in count 1:
To convict the defendant of the crime of Attempted Murder in the First Degree as charged in Count 1, each of the following elements of the crime must be proved beyond a reasonable doubt:
(1) That on or about November 14, 2011, the defendant did an act that was a substantial step toward the commission of Murder in the First Degree;
(2) That the act was done with the intent to commit Murder in the First Degree; and
(3) That the act occurred in the State of Washington.
If you find from the evidence that each of these elements has been proved beyond a reasonable doubt, then it will be your duty to return a verdict of guilty.
On the other hand, if, after weighing all the evidence, you have a reasonable doubt as to any one of these elements, then it will be your duty to return a verdict of not guilty.
CP at 80. The " to convict" instruction on the attempted first degree murder charge in count 2 contained the same ...