Jury Instructions for Lesser-Included Offenses in Washington

Washington criminal defendants have the right for the jury to be instructed on applicable lesser-included crimes if each of the elements of the lesser offense is a necessary element of the charged offense and the evidence supports an inference the lesser crime was committed instead of the greater offense.  There must also be affirmative evidence of the defendant’s theory.

A defendant recently challenged her conviction because the trial court denied her request to instruct the jury on lesser-included offenses.  According to the appeals court’s unpublished opinion, the defendant told another sophomore student that a senior, identified by the court as “RV,” had inappropriately touched her and other girls.  She had complained to the administration, but did not receive a response.  She and the other student, identified as “JC” developed a plan to “take out” or “kill” RV, according to statements she gave the police.  She said she was to convince RV to meet her at a market across from the school and JC would attack him.

The state presented evidence of messages associated with the defendant’s social media account convincing RV to her.  JC went behind the market with a knife and a red t-shirt over his face.  RV and the defendant went inside the market to buy lunch.  The defendant testified she only intended to get lunch and return to school.  As they were leaving the market, other students were “talkin’ about a guy in the field with a red mask.” They went behind the store and RV saw someone in a red mask stand up and point at him.  He decided to go back to school.  JC and the defendant spoke, and then both went back to school, too.

The principal was informed of a person in a mask at the market.  The market’s surveillance video showed JC with a knife, so the principal called the police.

The state charged the defendant with conspiracy to commit first degree murder and she was tried as an adult.  She testified she thought JC meant he wanted to fight or beat-up RV when he said he wanted to “kill” him. She admitted that she had sent social media messages to RV asking him to meet her at the market, but claimed her account was hacked and she had not sent most of the messages.

The defendant’s attorney requested an instruction on lesser-included conspiracy to commit assault crimes, but the court denied the request.  The jury convicted the defendant of conspiracy to commit murder in the first degree.

The defendant appealed, arguing the court erred in refusing the instruction for the lesser-included crimes.  The state argued the evidence did not support conspiracy to commit assault instructions.

The state conceded that first and second degree assault were lesser included crimes of murder in the first degree.  The appeals court therefore focused on whether there was sufficient evidence to support an inference the defendant committed conspiracy to commit first or second degree assault.

The defendant had testified she knew JC planned to “kill” RV, but thought he actually meant to beat RV up without substantially harming him.  She testified she did not intend for him to be harmed significantly.  She had agreed to bring RV to the market, but testified she did not know JC would bring a knife.  JC, however, testified that she did know he was bringing a knife and planned to kill RV and not just assault him.

The appeals court found the evidence did not support an instruction for conspiracy to commit first or second degree assault, even when viewed in a light most favorable to the defendant.  The defendant argued that the evidence JC brought a knife and her acknowledgement they planned to assault RV was sufficient for the jury to infer they planned a first or second degree assault.  The appeals court noted, however, that argument required them to “blend theories and disregard evidence,” pointing out there was evidence of a plan to murder and evidence of a plan for an assault that did not result in significant injuries.  There was not evidence the defendant and JC had a plan to assault RV at the level of first or second degree assault.

The trial court had also denied the defendant’s request for an instruction on conspiracy to commit fourth degree assault.  The state argued this instruction was only supported by the defendant’s statements, and she had testified she was not participating in a conspiracy on the date RV was attacked. The trial court had agreed, noting that the evidence was not corroborated.

The appeals court, however, agreed with the defendant.   There was sufficient evidence to support the instruction.  The state’s argument addressed the credibility of the evidence, not its sufficiency.  Although the defendant’s trial testimony contradicted previous statements and the claim regarding fourth degree assault was not corroborated by other evidence, the evidence must be viewed in a light most favorable to the defendant when determining if an instruction should be given.

The state also argued the defendant denied participating in the conspiracy.  She had testified she convinced RV to return to school after he saw the person in the red mask.  The appeals court pointed out that a defendant may assert inconsistent alternative defenses.  The appeals court noted that the defendant’s argument was basically that she did not participate in a conspiracy, but if she did, it was conspiracy to commit assault in the fourth degree, not murder.

The trial court erred in denying the conspiracy to commit fourth degree assault instruction because the evidence raised an inference the defendant had participated in that offense.

The appeals court reversed the conviction and remanded the case for a new trial.

If your child is being charged with a crime, a skilled Washington juvenile defense attorney can fight for their rights.  Whether your child is being charged as a juvenile or an adult, the attorney’s at Blair & Kim, PLLC, have the knowledge and experience to help.  Schedule a consultation by calling (206) 622-6562.


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