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State v. Perez-Cervantes8/24/2000
ek medical attention was an intervening proximate cause of his death, it would not be a superseding cause under the jury instruction set forth above, if in the exercise of ordinary care, Perez-Cervantes should reasonably have anticipated the cause. This does not mean that the injury is foreseeable, but, rather, in the words of the instruction, that the 'death fall within the general field of danger which the defendant should have reasonably anticipated.' Instruction 15, CP at 79. Here, the bleeding which filled Thomas' chest cavity may have been facilitated by Thomas' drug use or failure to seek medical attention, but it was certainly within the general field of danger created by Perez-Cervantes' act of plunging his knife into Thomas.
In sum, we are satisfied that there was insufficient evidence that Thomas' death was proximately caused by his use of drugs or his failure to seek medical care. In any event, neither of those causes superseded Perez-Cervantes' act as a proximate cause of Thomas' death. The trial court, therefore, did not abuse its discretion in preventing Perez-Cervantes' counsel from making that argument to the jury.
III.
Through his pro se brief and that filed by his counsel, Perez-Cervantes claims that the trial court erred in several additional respects. Because the Court of Appeals found the cause of death issue dispositive, it did not 'reach the other issues raised by counsel or by Perez-Cervantes, pro se.' Perez-Cervantes, 90 Wn. App. at 573. Having concluded that the Court of Appeals erred in reversing the trial court, we must consider these other issues.
Perez-Cervantes' counsel claims that the trial court erred in refusing to give his requested instructions on the lesser included offenses of first degree manslaughter and second degree manslaughter. An instruction on a lesser included offense is warranted when two conditions are met: 'First, each of the elements of the lesser offense must be a necessary element of the offense charged{, and} {s}econd, the evidence in the case must support an inference that the lesser crime was committed.' State v. Workman, 90 Wn.2d 443, 447-48, 584 P.2d 382 (1978) (citations omitted).
The requested instruction fails the factual component of this analysis. In order to satisfy that component of the Workman test, there must be substantial evidence that affirmatively indicates that manslaughter was committed to the exclusion of first or second degree murder. See State v. Berlin, 133 Wn.2d 541, 551, 947 P.2d 700 (1997) (citing Beck v. Alabama, 447 U.S. 625, 635, 100 S. Ct. 2382, 65 L. Ed. 2d 392 (1980)). 'It is not enough that the jury might simply disbelieve the State's evidence. Instead, some evidence must be presented which affirmatively establishes the defendant's theory on the lesser included offense before an instruction will be given.' State v. Fowler, 114 Wn.2d 59, 67, 785 P.2d 808 (1990) (citing State v. Rodriguez, 48 Wn. App. 815, 820, 740 P.2d 904, review denied, 109 Wn.2d 1016 (1987)).
Perez-Cervantes contends that the jury could have inferred that manslaughter was committed because 'a small knife, causing a small wound, which was successfully treated initially does not prove intent to kill,' and that Perez-Cervantes 'meant to assault Mr. Thomas, not kill.' Br. of Appellant at 8-9. Perez-Cervantes cannot, however, overcome the presumption that an actor intends the natural and foreseeable consequences of his conduct. The State's evidence showed that Perez-Cervantes twice attacked Thomas with a knife, after Thomas had been kicked and beaten into submission. 'A jury may infer criminal intent from a defendant's conduct where it is plainly indicated as a matter
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