State v. Kamps5/13/2003
e not found or fairly implied, however, we presume prejudice and reverse without reaching the question of prejudice.' McCarty, 140 Wn.2d at 425-26 (citing Kjorsvik, 117 Wn.2d at 105-06; City of Auburn v. Brooke, 119 Wn.2d 623, 636, 836 P.2d 212 (1992)). The information charging Mr. Kamps alleged, citing RCW 9A.36.011(1)(a): 'That on or about the 6th day of January 2000, in Asotin County, Washington, with the intent to inflict great bodily harm the Defendant assaulted Benjamin Pourier with a deadly weapon.' CP at 6. An amended information repeated the allegation.
The first degree assault statute partly states:
A person is guilty of assault in the first degree if he or she, with intent to inflict great bodily harm:
(a) Assaults another with a firearm or any deadly weapon or by any force or means likely to produce great bodily harm or death; or
(c) Assaults another and inflicts great bodily harm. RCW 9A.36.011(1).
'When a statute sets forth alternative means by which a crime can be committed, the charging document may charge none, one, or all of the alternatives, provided the alternatives charged are not repugnant to one another.' State v. Williamson, 84 Wn. App. 37, 42, 924 P.2d 960 (1996) (citing State v. Noltie, 116 Wn.2d 831, 842, 809 P.2d 190 (1991); State v. Severns, 13 Wn.2d 542, 548, 125 P.2d 659 (1942); State v. Bray, 52 Wn. App. 30, 34, 756 P.2d 1332 (1988)); see also State v. Nicholas, 55 Wn. App. 261, 272, 776 P.2d 1385 (1989). Here, the charging document is facially consistent with the charged crime, RCW 9A.36.011(1)(a). Therefore, the information satisfies the first prong of Kjorsvik.
The burden then falls upon Mr. Kamps to show the wording in the information caused him prejudice. Kjorsvik, 117 Wn.2d at 105-06. He does not meet that standard. The pretrial record is replete with information regarding the firearm and the injuries inflicted upon Mr. Pourier. Below, we discuss the inconsistency between the charging document and the 'to convict' instruction.
C. Jury Instructions
There are two main issues: (1) whether the trial court erred in giving certain instructions, and (2) whether the trial court erred in declining to give a requested first degree burglary instruction. We will examine the challenged instructions in numerical order.
Whether a jury instruction accurately states the law without misleading the jury is a question of law this court reviews de novo. State v. Linehan, 147 Wn.2d 638, 643, 56 P.3d 542 (2002), cert. denied, S. Ct. , WL 271519 (2003). 'Jury instructions are sufficient if they are supported by substantial evidence, allow the parties to argue their theories of the case, and when read as a whole properly inform the jury of the applicable law.' State v. Clausing, 147 Wn.2d 620, 626, 56 P.3d 550 (2002) (citing State v. Riley, 137 Wn.2d 904, 908 n.1, 909, 976 P.2d 624 (1999)).
The constitution requires the jury be instructed on all essential elements of the crime charged. Linehan, 147 Wn.2d at 653. An instruction omitting an essential element of a crime relieves the State of its burden of proving each element of the crime beyond a reasonable doubt. Id. at 654. Such an error is a violation of due process and harmless solely if the reviewing court is 'convinced beyond a reasonable doubt any reasonable jury would reach the same result absent the error.' Id. (citing State v. Easter, 130 Wn.2d 228, 242, 922 P.2d 1285 (1996)).
Jury Instruction No. 5. Instruction 5 is the 'to convict' instruction on the first degree assault. CP at 557. Mr. Kamps contends the instruction is erroneous because (1) it does not allege the use of a deadly weapon as the St
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