[No. 35222-2-II. Division Two. September 18, 2007.]
[1] Criminal Law — Trial — Instructions — Review — Failure To Object — Claim of Ineffective Assistance of Counsel. An appellate court may consider a claim of error in a criminal jury instruction even though no objection was raised to the instruction at trial if the alleged error forms the basis for a claim of ineffective assistance of counsel. [2] Criminal Law — Right to Counsel — Effective Assistance of Counsel — Test. A claim of ineffective assistance of counsel requires a showing of (1) deficient performance by counsel and (2) resulting prejudice. [3] Criminal Law — Right to Counsel — Effective Assistance of Counsel — Presumption — In General. A court's analysis of a claim of ineffective assistance of counsel begins with the strong presumption that counsel's performance was adequate and effective. [4] Criminal Law — Right to Counsel — Effective Assistance of Counsel — Prejudice — Test. A criminal defendant is not prejudiced by defense counsel's deficient performance unless there is a reasonable probability that, but for counsel's unprofessional errors, the result of the trial would have been different. [5] Criminal Law — Right to Counsel — Effective Assistance of Counsel — Failure To Object to Instruction — Threshold Showing — Likely Success of Objection. Defense counsel's failure to object to a jury instruction on a particular ground will not support a claim of ineffective assistance of counsel absent a showing by the defendant that the objection likely would have been successful had it been made. [6] Criminal Law — Right to Counsel — Effective Assistance of Counsel — Failure To Object to Instruction — Proper Instruction. Defense counsel's failure to object to a lawful jury instruction will not support a claim of ineffective assistance of counsel. [7] Trial — Instructions — Sufficiency — Test. The instructions given in a trial are sufficient if they allow the parties to argue their theories of the case, are not misleading, and, when read as a whole, properly inform the jury of the applicable law. [8] Trial — Instructions — Review — Standard of Review. Jury instructions are reviewed de novo. [9] Trial — Instructions — Review — Considered as a Whole — Context. An appellate court reviewing the sufficiency of a jury instruction examines the effect of the instruction by considering the instructions as a whole and reading the instruction in the context of all of the instructions given. [10] Criminal Law — Evidence — Degree of Proof — Burden of Proof — Instructions — Necessity — Prejudice.In a criminal trial, the trial court must instruct the jury that the State has the burden of proving each essential element of the crime charged beyond a reasonable doubt. Instructions that relieve the State of that burden constitute prejudicial error. [11] Assault, Criminal — Second Degree Assault — Elements — Mental Elements — Act and Result. Under RCW 9A.36.021(1)(a), a person commits second degree assault by intentionally assaulting another and thereby recklessly inflicting substantial bodily harm. This crime is defined by an act (assault) and a result (substantial bodily harm). The mens rea of intentionally relates to the act (assault), while the mens rea of recklessly relates to the result (substantial bodily harm). [12] Assault, Criminal — Assault by Battery — Mental Element. Assault by battery requires proof of intent to do the physical act constituting the assault; it does not require specific intent to accomplish some further result, such as inflicting substantial bodily harm. [13] Assault, Criminal — Second Degree Assault — Elements — Assault by Battery — Mental Element. Second degree assault by battery under RCW 9A.36.021(1)(a) is committed by an intentional touching that recklessly inflicts substantial bodily harm; the statute does not require specific intent by the perpetrator to inflict substantial bodily harm. [14] Trial — Instructions — Review — Considered as a Whole — Presumption. A jury is presumed to have read the trial court's instructions as a whole, in light of all other instructions. [15] Trial — Instructions — Adherence by Jury — Presumption — In General. A jury is presumed to follow all of the instructions given by the trial court. [16] Assault, Criminal — Second Degree Assault — Elements — Reckless Infliction of Substantial Bodily Harm — Definitional Instruction — Validity. When the State charges a person with second degree assault for intentionally assaulting and recklessly inflicting substantial bodily harm, it is not misleading, nor does it create a mandatory presumption, for the trial court to instruct, as defined by RCW 9A.08.010(2), that "[r]ecklessness also is established if a person acts intentionally or knowingly." [17] Criminal Law — Lesser Included Offense — Instruction — Necessity — Test. A lesser included offense instruction is proper only if each element of the lesser offense is necessarily included in the charged offense and there is sufficient evidence to support an inference that the lesser crime was committed. The fact that the jury might simply disbelieve the State's evidence bearing on the charged offense is not enough to warrant giving a lesser included offense instruction. [18] Criminal Law — Lesser Included Offense — Instruction — Necessity — Charged and Prosecuted Offense. The lesser-included offense analysis is applied to offenses as charged and prosecuted, rather than to the offenses as they broadly appear in their statutes. [19] Criminal Law — Crimes — Elements — Recklessness — Objective and Subjective Components — In General. Reckless conduct includes both a subjective and an objective component. Whether an act is reckless depends both on what the defendant knew (subjective component) and how a reasonable person would have acted knowing the same facts (objective component). [20] Criminal Law — Crimes — Elements — Knowledge — What Constitutes — Statutory Provisions — Permissive Inference. RCW 9A.08.010(1)(b)(ii) permits the inference that a criminal defendant had actual subjective knowledge of a fact if the defendant had information sufficient to lead a reasonable person to believe that the fact exists. [21] Assault, Criminal — Second Degree Assault — Elements — Substantial Bodily Harm — Knowledge of Consequences of Punch to Face. For purposes of a prosecution for second degree assault under RCW 9A.36.021(1)(a), any reasonable person knows that punching someone in the face could result in a broken jaw, nose, or teeth, each of which would constitute substantial bodily harm. [22] Assault, Criminal — Second Degree Assault — Included Offenses — Fourth Degree Assault — Instruction — Necessity. In a prosecution for second degree assault under RCW 9A.36.021(1)(a), where the evidence is insufficient to support an inference that the defendant unlawfully touched the victim and yet did not recklessly inflict substantial bodily harm, the defendant is not entitled to an instruction on the lesser included offense of fourth degree assault. [23] Criminal Law — Right to Counsel — Effective Assistance of Counsel — Failure To Request Instruction — Lesser Included Offense. Defense counsel's failure to request a lesser included offense instruction does not constitute ineffective assistance of counsel if the record does not support giving the instruction. [24] Assault, Criminal — Second Degree Assault — Elements — Absence of First Degree Assault. The phrase "not amounting to assault in the first degree" in the RCW 9A.36.021(1) definition of second degree assault does not function as an essential element of second degree assault. The phrase simply serves to explain that the circumstances of second degree assault are distinguished from the circumstances of first degree assault and is not an element that must be submitted to the jury for a finding of guilt beyond a reasonable doubt. Nature of Action: Prosecution for second degree assault. Superior Court: The Superior Court for Clallam County, No. 06-1-00130-2, George L. Wood, J., on July 25, 2006, entered a judgment on a verdict of guilty. Court of Appeals: Holding that the defendant's trial counsel did not render ineffective assistance of counsel inasmuch as an instruction given by the trial court defining "recklessness" was not in error and the record did not support giving a lesser included offense instruction, and that the State was not required to disprove first degree assault, the court affirms the judgment. Jodi R. Backlund- and Manek R. Mistry- (of Backlund & Mistry), for appellant. Deborah S. Kelly-, Prosecuting Attorney, and Jill Landes-, Deputy, for respondent. ¶1 BRIDGEWATER, J. — Mark Thomas Keend appeals his jury conviction for second degree assault under RCW 9A.36.021(1)(a). We hold that when the State charges a person with second degree assault for intentionally assaulting and recklessly inflicting substantial bodily harm, it is not misleading, nor does it create a mandatory presumption, for the trial court to instruct, as defined by RCW 9A.08.010(2), that "[r]ecklessness also is established if a person acts intentionally or knowingly." Clerk's Papers (CP) at 33, Instruction 9. In addition, because the evidence was insufficient to support an inference that Keend did not recklessly inflict substantial bodily harm, we hold that a lesser-included instruction would have been inappropriate. Also, we hold that the State is not required to allege or prove as an element of second degree assault that the act did not amount to first degree assault. Finally, we adhere to our decision in State v. Chavez, 134 Wn. App. 657, 142 P.3d 1110 (2006), review granted, 160 Wn.2d 1021 (2007), in which we held that the judiciary has not violated the separation of powers doctrine by defining common law assault. We affirm. FACTS ¶2 Outside a bar in Port Angeles, Keend approached Daniel Reeves, asked him some questions about an alleged relationship with Keend's sister, and then punched him in the jaw. Keend broke Reeves's jaw, requiring doctors at Harborview Medical Center to wire his jaw closed for over two weeks. Then, after ultimately having his jaw realigned, Reeves wore braces on his teeth for another three weeks. During this treatment, Reeves missed at least two and a half months of work. ¶3 Keend admitted to Officer Edwin Benedict that he had punched Reeves in the jaw. According to Officer Benedict, Keend was mad that Reeves was allegedly involved in a sexual relationship with his then 16 year-old sister. ANALYSIS I. RECKLESSNESS INSTRUCTION ¶4 Among other things, Keend argues that the "recklessness" instruction in his case created a mandatory presumption, misled the jury regarding an essential element, and misstated the law. Br. of Appellant at 5. Here, the "recklessness" instruction, taken from 11 Washington Practice: Washington Pattern Jury Instructions: Criminal 10.03, at 153 (2d ed. 1994) (WPIC), stated: A person is reckless or acts recklessly when he or she knows of and disregards a substantial risk that a wrongful act may occur and the disregard of such substantial risk is a gross deviation from conduct that a reasonable person would exercise in the same situation. Recklessness also is established if a person acts intentionally or knowingly. CP at 33 (emphasis added). The first sentence of this instruction is taken from RCW 9A.08.010(1)(c); the second sentence of this instruction is taken from RCW 9A.08.010(2). ¶9 Relying on our decision in State v. Goble, 131 Wn. App. 194, 126 P.3d 821 (2005), Keend argues that the last sentence of the "recklessness" instruction created a mandatory presumption and allowed the jury to convict him if it found that he had acted intentionally. ¶10 In Goble, we analyzed a "knowledge" instruction that included the sentence, "[a]cting knowingly or with knowledge also is established if a person acts intentionally." Goble, 131 Wn. App. at 202. In that case, we held that the instruction was confusing because it potentially allowed the jury to find the defendant guilty of third degree assault against a law enforcement officer if it found that the defendant intentionally assaulted the victim but without having to find that the defendant knew the victim was a law enforcement officer performing his official duties. Goble, 131 Wn. App. at 202-03. We stated: We agree that the instruction is confusing and that the [challenged] portion of the instruction allowed the jury to presume Goble knew [the victim's] status at the time of the incident if it found Goble had intentionally assaulted [the victim]. This conflated the intent and knowledge elements required under the to-convict instruction into a single element and relieved the State of its burden of proving that Goble knew [the victim's] status if it found the assault was intentional. Goble, 131 Wn. App. at 203 (emphasis added). (1) That on or about the 31st day of March, 2006, the Defendant intentionally assaulted Daniel Reeves; (2) That the Defendant thereby recklessly inflicted substantial bodily harm on Daniel Reeves; and (3) That the acts occurred in the State of Washington. CP at 30 (emphasis added). And the trial court separately defined "intentionally" in instruction number 10 and separately defined "recklessly" in instruction number 9. CP at 33-34. ¶14 Thus, under both the statute and the trial court's instructions, the jury could convict Keend if he intentionally assaulted the victim and one of three results occurred from that unwanted touching: (1) Keend intended to break the victim's jaw, (2) Keend knew that the victim was particularly vulnerable to a broken jaw if punched in the face; or (3) Keend knew and disregarded the risk of breaking the victim's jaw. Without including all the substitutes for the definition of "recklessly," the trial court would not have provided for the instance where Keend specifically intended the result of his intentional assault, i.e., breaking the victim's jaw. Therefore, it was appropriate for the trial court to instruct the jury that a reckless act is established if a person acts intentionally. ¶15 Furthermore, the jury is presumed to read the trial court's instructions as a whole, in light of all other instructions. State v. Hutchinson, 135 Wn.2d 863, 885, 959 P.2d 1061 (1998), cert. denied, 525 U.S. 1157 (1999). Here, the trial court set forth the mental states of the crime separately in the "to convict" instruction and separately defined "intentionally" and "recklessly." And although Keend relies on Goble, it is inapposite to this case. In Goble, we were concerned with a dispute involving the "knowledge" instruction and the defendant's knowledge of the victim's status, i.e., whether the victim was a law enforcement officer. Goble, 131 Wn. App. at 202-03. And we held that the jury could have been confused by the "knowledge" instruction. Goble, 131 Wn. App. at 203. After all, if the jury found that the unwanted touching was intentional, the jury could have presumed that the defendant knew that the victim was a law enforcement officer. Goble, 131 Wn. App. at 203. ¶16 But in this case, there was no possibility that the jury was confused. There was no conflation of the mental states. As a whole, the jury instructions, including the "to convict" instruction and the definition instructions, were clear, accurate, and separately listed. And we presume that juries follow all instructions that the trial court gives to them. State v. Stein, 144 Wn.2d 236, 247, 27 P.3d 184 (2001). There is no possibility that because the jury found that Keend intended to punch the victim, it necessarily found that Keend intended to break the victim's jaw. In other words, the second sentence of the "recklessness" instruction did not allow the jury to presume that Keend intended to inflict substantial bodily harm if it found that he intentionally assaulted Reeves. Thus, we find no error. II. LESSER-INCLUDED OFFENSE ¶17 Keend argues that he was denied effective assistance of counsel when his counsel failed to request an instruction on the lesser-included offense of fourth degree assault. ¶21 Thus, the evidence was insufficient to support an inference that he unlawfully touched Reeves and yet did not recklessly inflict substantial bodily harm. After all, the evidence of Reeves's injuries and their cause is not disputed. Thus, Keend was not entitled to an instruction on the lesser-included offense of fourth degree assault. And he was not denied effective assistance of counsel when his counsel failed to request such an instruction. III. ELEMENTS OF SECOND DEGREE ASSAULT ¶22 Keend argues that the State's information was constitutionally deficient because it failed to allege an essential element of second degree assault. (a) Willful violation of a court order issued under subsection (2) or (3) of this section is a gross misdemeanor except as provided in (b) . . . of this subsection (4). . . . (b) Any assault that is a violation of an order issued under this section and that does not amount to assault in the first or second degree under RCW 9A.36.011 or (Emphasis added.) In Azpitarte, our Supreme Court ultimately held that "[t]he statute clearly states that second degree assault cannot serve as the predicate to make the violation a felony." Azpitarte, 140 Wn.2d at 141. ¶24 In State v. Ward, 148 Wn.2d 803, 812, 64 P.3d 640 (2003), our Supreme Court clarified Azpitarte, noting that "the purpose of the 'does not amount to' [assault in the first or second degree] provision is to elevate no-contact violations to a felony when any assault is committed." Our Supreme Court then explained: If we were to interpret the statutory language as requiring the State to disprove assault in the first or second degree as an essential element of felony violation of a no-contact order, the defendant would be placed in the awkward position of arguing that his conduct amounts to a higher degree of assault than what the State has charged. Ward, 148 Wn.2d at 812-13. Accordingly, our Supreme Court held that the phrase "does not amount to assault in the first or second degree" does not function as an essential element of the felony violation of a no-contact order. Ward, 148 Wn.2d at 813. ¶25 Here, even assuming that the analysis of former RCW 10.99.040 in Azpitarte and Ward is applicable by analogy to an analysis of RCW 9A.36.021(1)(a), we hold that the phrase "not amounting to assault in the first degree" does not function as an essential element of second degree assault. Otherwise, as in Ward, such an interpretation would place Keend in the awkward position of arguing that his conduct amounts to a higher degree of assault than what the State has charged. See Ward, 148 Wn.2d at 813. Instead, the phrase "not amounting to assault in the first degree" simply serves to explain that the circumstances of second degree assault are distinguished from the circumstances of first degree assault. And because the phrase "not amounting to assault in the first degree" is not necessary to find a person guilty of second degree assault under RCW 9A.36.021(1)(a), we hold that the State properly submitted all elements of the crime to the jury for a finding of guilt beyond a reasonable doubt. IV. SEPARATION OF POWERS DOCTRINE ¶26 Keend argues that the judiciary has violated the separation of powers doctrine ¶27 Affirmed. HUNT and QUINN-BRINTNALL, JJ., concur.