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State v. Downey

Court of Appeals of Washington, Division 1

August 19, 2019

STATE OF WASHINGTON, Respondent,
v.
DYLAN JAMES DOWNEY, Appellant.

          Leach, J.

         Dylan James Downey appeals his conviction for vehicular assault. He raises two constitutional issues. First, he claims that the court violated his right to present a defense by refusing his request to instruct the jury that one alternative means of committing vehicular assault is a lesser-included offense of committing the same crime by a different means. This claim fails because the lesser-included-offense rule requires a comparison of the elements of two separate crimes and does not apply to different means of committing a single crime.

         Second, he claims that the court violated his right to notice of the offense charged when the trial court instructed the jury on an uncharged means of committing vehicular assault after he asked the court to instruct on this means as a lesser-included offense. Because Downey fails to show a lack of notice or, prejudice, we reject this claim too. We affirm.

         FACTS

         In July 2014, Downey gave his friend, Brittney Wright, a motorcycle ride. Downey was driving over the speed limit[1] when he failed to negotiate a curve and crashed, ejecting him and Wright from the motorcycle. The lower half of one of Downey's legs was severed, and Wright had compound fractures of both legs. The State charged Downey with possession of a stolen vehicle and vehicular assault committed by the alternative means of operating a vehicle in a reckless manner.[2]

         At trial, Downey asked the court to instruct the jury on a second means of committing vehicular assault, operating a vehicle with disregard for the safety of others, which he characterized as the "lesser-included offense" of the reckless manner prong. The trial court ruled that disregard for the safety of others prong was not a lesser-included offense of the reckless manner prong but, rather, an alternative means of committing vehicular assault. The court instructed the jury on both alternative means. The jury acquitted Downey of possession of a stolen vehicle but found him guilty of vehicular assault. The jury's answers to the special interrogatory verdict form showed that it was not unanimous about the means. The court entered a conviction for the alternative means of disregard for the safety of others. Downey appeals.

         ANALYSIS

         Downey asserts that the trial court violated his due process rights by not giving the jury his proposed lesser-included-offense instruction and violated his constitutional right to notice when it instead instructed the jury on an uncharged alternative means. We disagree.

         First, Downey contends that the trial court erred in not instructing the jury that vehicular assault committed by the alternative means of disregard for the safety of others was a lesser-included offense of vehicular assault committed by the alternative means of reckless manner. A person commits vehicular assault if he causes substantial bodily harm to another while driving a vehicle (1) in a reckless manner, (2) while under the influence of intoxicating liquor or any drugs, or (3) with disregard for the safety of others.[3] The parties agree that vehicular assault is an alternative means statute.[4] This means that vehicular assault is a single crime that can be committed in three different ways.

         At issue here are alternative means (1) and (3). "Reckless manner" means "'driving in a rash or heedless manner, indifferent to the consequences."'[5]"'Disregard for the safety of others'" is "an aggravated kind of negligence, falling short of recklessness, but more serious than ordinary negligence."[6]

         The due process clause of the Fourteenth Amendment requires that criminal defendants have a meaningful opportunity to present a defense.[7]"Parties are entitled to instructions that, when taken as a whole, properly instruct the jury on the applicable law, are not misleading, and allow each party the opportunity to argue their theory of the case."[8]

         Under the two-part test our Supreme Court established in State v. Workman, .[9] a defendant is entitled to a lesser-included-offense instruction if (1) each element of the lesser offense is a necessary element of the offense charged (the "legal prong") and (2) the evidence in the case supports an inference that the defendant committed only the lesser crime (the "factual prong"). This court reviews the trial court's determination of the legal prong de novo and the factual prong for an abuse of discretion.[10]

         But, here, we need not apply the Workman test because Downey does not establish that Workman's lesser-included-offense analysis applies to alternative means of the same offense as opposed to separate offenses. The test requires a comparison of the elements of two separate crimes. This case involves only one crime. And Workman does not involve a comparison of the penalties for different crimes.

         In State v. Huyen Bich Nguyen, [11] our Supreme Court examined RCW 10.61.006, the "[i]ncluded offenses" statute. RCW 10.61.006 states, "[T]he defendant may be found guilty of an offense the commission of which is necessarily included within that with which he or she is charged in the indictment or information." In holding that physical control while under the influence of alcohol or drugs is an included offense of driving while under the influence of alcohol or drugs, the court stated, "[T]here is no requirement that an included offense must have a lesser penalty than the charged offense."[12] Both the included offenses statute and our Supreme Court thus ...


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