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State v. Kamps5/13/2003
, Mr. Kamps concedes the instruction is accurate for purposes of first degree assault. RCW 9A.36.011; RCW 9A.04.110(4)(c). He simply asserts the instruction is misleading because it does not inform the jury the instruction is to be used solely in connection with Instruction 5, the 'to convict' instruction for first degree assault. He speculates the jury may have improperly relied on Instruction 6 in determining whether 'great bodily harm' applied to Instruction 15, one of the challenged self-defense instructions. We discuss this aspect in our discussion of Instruction 15.
Jury Instruction No. 9. Instruction 9 defines assault:
An assault is an intentional touching or striking or cutting or shooting of another person that is harmful or offensive regardless of whether any physical injury is done to the person.
An assault is also an act done with the intent to create in another apprehensions and fear of bodily injury, and which in fact creates in another a reasonable apprehension and imminent fear of bodily injury even though the actor did not actually intend to inflict bodily injury. CP at 561.
Mr. Kamps contends the instruction is defective because it omits the phrase 'with unlawful force.' Instruction 9 derives from 11 Washington Pattern Jury Instructions - Criminal 35.50 (1994) (WPIC) as it currently appears in the 1998 pocket part of the WPIC. The first paragraph of Instruction 9 is also consistent with an earlier version of the pattern instruction that did not include the phrase 'with unlawful force' in connection with assault by actual battery - harmful physical contact. WPIC 35.50 (1994). That earlier version of the instruction included 'with unlawful force' in connection with the other two means of assault, attempted battery and creation of apprehension and fear. Id.
By contrast, the 1998 version of the instruction includes the bracketed phrase 'with unlawful force' in connection with all three means of assault. WPIC 35.50 (1998 supp). The Supreme Court committee on jury instructions recommends including the phrase ''with unlawful force' if there is a claim of self defense or other lawful use of force.' Id. Here, Mr. Kamps claimed self defense, but Instruction 9 omits the phrase 'with unlawful force.'
Nevertheless, the instruction drafters added a cautionary note with regard to the use of the phrase 'with unlawful force.' Id.
In another context, however, the court has criticized jury instruction that used the term 'unlawful' without defining it. If there is a claim of self-defense or other lawful use of force, the instruction on that defense will define the term 'lawful.' If there is no such evidence, the jury should not be left to speculate on what might constitute 'lawful' conduct. Id.
The State misreads the above passage to argue the phrase 'with unlawful force' was unnecessary. The drafters had two concerns. First, the trial court cautioned against using the phrase 'with unlawful force' without defining it. Id. Second, the drafters cautioned against employing the term 'unlawful force' absent evidence of self defense or other use of lawful force. Id. In other words, the drafters were concerned that in cases without a self-defense theory, the jury would speculate as to whether the defendant's use of force was 'unlawful' or 'lawful.' Id. This is a self-defense case. The instruction drafters expressly recommended including the phrase 'with unlawful force' where 'there is a claim of self-defense or other lawful use of force.' Id.
Instruction 9 was a deficient definition of 'assault' because it omits the phrase 'with unlawful force' as recommended by the instruction drafters and the case law. Bu
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