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State v. Kamps5/13/2003
ate alleged in the information, and (2) it omits the State's burden of proving the absence of self-defense beyond a reasonable doubt.
1. Uncharged Alternative
Regarding Mr. Kamps' first point, Instruction 5 alleges Mr. Kamps 'acted with intent to inflict great bodily harm' and 'the assault resulted in the infliction of great bodily harm' upon Mr. Pourier. CP at 557. The first degree assault statute lists three alternative means. RCW 9A.36.011(1). Two subsections are relevant. A person commits first degree assault if, with intent to inflict great bodily harm, he or she assaults the victim with a firearm or other instrumentality likely to produce great bodily harm or death. RCW 9A.36.011(1)(a). Alternatively, a person can commit first degree assault if, with intent to inflict great bodily harm, he or she assaults the victim and inflicts great bodily harm. RCW 9A.36.011(1)(c).
As noted, the information charging Mr. Kamps permissibly alleged the 'deadly weapon' statutory alternative. RCW 9A.36.011(1)(a); see also Severns, 13 Wn.2d at 548; Williamson, 84 Wn. App. at 42. By contrast, Instruction 5 listed a different statutory alternative, infliction of great bodily harm. RCW 9A.36.011(1)(c).
'If the information alleges only one alternative, however, it is error for the factfinder to consider uncharged alternatives, regardless of the strength of the evidence presented at trial.' Williamson, 84 Wn. App. at 42 (citing Severns, 13 Wn.2d at 548; State v. Doogan, 82 Wn. App. 185, 188, 917 P.2d 155 (1996); Bray, 52 Wn. App. at 34); see also Nicholas, 55 Wn. App. at 272-73. 'One cannot be tried for an uncharged offense.' Bray, 52 Wn. App. at 34 (citing State v. Brown, 45 Wn. App. 571, 576, 726 P.2d 60 (1986)).
Here, the trial court erred when it instructed the jury on an alternative means not alleged in the information. Williamson, 84 Wn. App. at 42. Because the instructional error favored the prevailing party, it is presumed prejudicial unless it affirmatively appears the error was harmless. Bray, 52 Wn. App. at 34-35.
Although a trial court errs in instructing the jury on an uncharged means, the error may be harmless if other instructions clearly and specifically define the charged crime. Severns, 13 Wn.2d at 549; Nicholas, 55 Wn. App. at 273. Here, Instruction 4 defines first degree assault as follows: 'A person commits the crime of assault in the first degree when, with intent to inflict great bodily harm, he or she assaults another with a firearm.' CP at 556; see also RCW 9A.36.011(1)(a). Instruction 9 includes 'shooting of another person' within the definition of assault. CP at 561.
Instruction 22 informed the jury the State must prove beyond a reasonable doubt 'that the defendant was armed with a firearm at the time of the commission of the crime' of first degree assault. CP at 574. See Nicholas, 55 Wn. App. at 273. And the jury answered 'yes' on the special verdict form asking whether Mr. Kamps was armed with a firearm at the time he committed the crime. CP at 579. Given the other instructions clearly set forth a firearm allegation, it is not possible Mr. Kamps was prejudiced by the inclusion of an uncharged alternative in Instruction 5. See Nicholas, 55 Wn. App. at 273.
2. Burden of Proving Absence of Self-Defense
Regarding the State's burden of disproving self-defense, Instruction 14 sets out that burden. Mr. Kamps presents no authority requiring the trial court to put the States' self-defense burden within the 'to convict' instruction. Consequently, Mr. Kamps' contention on this point is unpersuasive.
Jury Instruction No. 6. Instruction 6 defines 'great bodily harm.' In his pro se brief
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