No. 26651-2-II.The Court of Appeals of Washington, Division Two.
Filed: February 15, 2002. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.
Appeal from Superior Court of Pierce County, No. 99-1-04196-0, Hon. Bryan Chushcoff, November 9, 2000, Judgment or order under review.
Counsel for Appellant(s), Pattie Mhoon, Attorney At Law, Ste 488, 949 Market St, Tacoma, WA 98402.
Counsel for Respondent(s), John C. Hillman, Pierce County Deputy Pros Attny, 930 Tacoma Ave S Rm 946, Tacoma, WA 98402.
CARROLL C. BRIDGEWATER, J.
Gary T. White appeals his jury conviction and sentence for third degree assault of a child. We hold that he was not entitled to an instruction on the lesser included and inferior degree offense of simple assault. We affirm.
Sheila Brux (Sheila) and defendant Gary White (White) lived together in Tacoma with Sheila’s two children. At trial, Thomas Kittelson (Kittelson), Sheila Brux’s friend who babysat Sheila’s children, testified that three year old Joseph, Sheila’s youngest son, threw a fit after Sheila left him at home to run some errands. Joseph screamed and would not calm down because he wanted to go with his mother. When Joseph tried to climb over a gate at the home, White brought Joseph back into the home, but Joseph continued to cry and scream.
Inside the home, White reached for a coat hanger to spank Joseph. Kittelson, who was at the home, told White not to use the hanger. White used Joseph’s belt instead, which was on the back of the couch. White, with the belt’s buckle looped in his hand, struck Joseph four to six times on his backside. According to Kittelson, who witnessed White hit Joseph, the belt’s buckle slipped from White’s hand and struck Joseph.
As White hit Joseph with the belt, Joseph cried at first, then screamed hysterically, and finally let out an ear-piercing scream. The welts and bruises Joseph suffered ran from his buttocks down to the back of his left knee. White conceded in his brief on appeal that Joseph’s injuries and bruising were caused by White’s punishment.
The State charged White with second degree child assault.[1] White was essentially charged with being over the age of 18 and committing an intentional assault and inflicting `substantial bodily harm’ on a child under the age of 13. The court gave the jury a second degree and third degree assault instruction, but it rejected White’s proposed fourth degree assault instruction. The jury convicted White of third degree child assault.
I. JURY INSTRUCTION
White first contends that the court erred in refusing his proposed fourth degree assault jury instruction. He argues that he was entitled to a fourth degree assault jury instruction because it is both a lesser included offense and an inferior degree of second degree assault.
An instruction on a lesser included offense is warranted when (1) each of the elements of the lesser offense are a necessary element of the offense charged and (2) the evidence in the case supports an inference that the lesser crime was committed.[2] State v. Fernandez-Medina, 141 Wn.2d 448, 454, 6 P.3d 1150 (2000) (citing State v. Workman, 90 Wn.2d 443, 447-48, 584 P.2d 382 (1978)). The first prong is the legal prong and the second the factual prong. Similarly, an inferior degree offense instruction is appropriate when: (1) the statutes for both the charged offense and the proposed inferior degree offense `proscribe but one offense’; (2) the information charges an offense that is divided into degrees, and the proposed offense is an inferior degree of the charged offense; and (3) there is evidence that the defendant committed only the inferior offense.[3] Fernandez-Medina, 141 Wn.2d at 454 (citing State v. Peterson, 133 Wn.2d 885, 891, 948 P.2d 381 (1997)).
The first two requirements are the legal prongs and the last the factual prong. While the tests for giving a lesser included and inferior degree offense instruction consists of legal and factual prongs, only the factual prong is at issue here. The State conceded that the legal prong was met. Br. of Respondent at 10.
When reviewing the factual prongs of both a lesser included and inferior degree offense, we view the evidence presented at trial in the light most favorable to White. Fernandez-Medina, 141 Wn.2d at 455-56. An instruction on a lesser included or inferior degree offense is appropriate if the evidence permits a jury to rationally find a defendant guilty of the lesser offense and acquit him of the greater. State v. Warden, 133 Wn.2d 559, 563, 947 P.2d 708 (1997). The evidence must affirmatively establish the defendant’s theory of the case on the lesser offense. Fernandez-Medina, 141 Wn.2d at 456; State v. Charles, 126 Wn.2d 353, 355, 894 P.2d 558 (1995). It is not enough that the jury could simply disbelieve the State’s evidence. Charles, 126 Wn.2d at 355.
The evidence must raise an inference that only the lesser included inferior defense was committed to the exclusion of the charged offense. Fernandez-Medina, 141 Wn.2d at 455. White does not meet the factual prong to entitle him to a fourth degree assault jury instruction as either a lesser included or inferior degree offense instruction. A person is guilty of fourth degree assault if, `under circumstances not amounting to assault in the first, second, or third degree, or custodial assault, he or she assaults another.’ RCW 9A.36.041. The trial court defined assault in its jury instruction as follows:
An assault is an intentional touching or striking of another person, with unlawful force, that is harmful or offensive regardless of whether any physical injury is done to the person. A touching or striking is offensive, if the touching or striking would offend an ordinary person who is not unduly sensitive.
Clerk’s Papers at 29.
It is undisputed that White struck Joseph with a belt and that Joseph suffered bruising from his buttocks down the back of his leg to his knee. White also admitted to Sheila and his mother that he struck Joseph and stipulated at trial that he struck Joseph with a belt. Kittelson, who was present when White hit Joseph, also testified that White struck Joseph with a belt and that Joseph let out an ear-piercing scream. Because Joseph may have suffered bodily harm from White striking him with a belt, a third degree assault instruction was appropriate. See RCW 9A.36.031 (third degree assault occurs when with criminal negligence a person causes bodily harm by means of a weapon or other instrument or thing likely to produce bodily harm); see also RCW 9A.04.110(4)(a) (bodily harm means `physical pain or injury, illness, or an impairment of physical condition’).
But there is not an inference that White only committed fourth degree assault. The statute defining fourth degree assault specifically requires that the evidence not rise to the level of first, second, or third degree or custodial assault. See State v. Stationak, 73 Wn.2d 647, 649-50, 440 P.2d 457 (1968); RCW 9A.36.041. Division I in State v. Daniels, 56 Wn. App. 646, 651 784 P.2d 579, review denied, 114 Wn.2d 1015
(1990), discussed this in relation to what is now fourth degree assault and the giving of a lesser included offense instruction. It stated as follows:
Since third degree assault is defined as one `not amounting to assault in either the first or second degrees,’ if the facts of the case are such that [the] defendant could have been found guilty of either first or second degree assault, then he could not have been found guilty of third degree assault.
(Footnote omitted).
Division I also noted the following:
In Stationak, the defendant pointed a gun at the victim, who suffered serious injury when it discharged. The defendant insisted he did not know the gun was loaded. Therefore, he argued, he did not have the requisite intent to inflict bodily harm, and should have been convicted, if at all, of third degree assault. Our Supreme Court disagreed. `Under all of the evidence . . . the defendant was guilty of first or second degree assault or of none at all. There was no evidence which would justify the jury in returning a verdict of guilty of assault in the third degree. The proposed instruction on third degree assault was, therefore, properly refused.’ Stationak, 73 Wn.2d at 650-51.
State v. Daniels, 56 Wn. App. at 651.
Similarly, Joseph suffered bodily harm from White striking him with a belt.
Because there was no issue as to whether the child was injured, the evidence clearly shows second degree or third degree assault. But, there was no evidence from which it could find fourth degree assault. Because there was no evidence to support a fourth degree instruction, the court did not err in refusing such instruction.
II. SENTENCE
Finally, White contends that the sentencing court’s failure to make a same criminal conduct determination for several of his prior offenses necessitates remand.[4] The State, on the other hand, argues that because White stipulated to his offender score, which counted his juvenile offenses separately, and expressly waived his right to appeal his stipulated offender score, the sentencing court did not need to make a same criminal conduct determination.[5] The statute governing treatment of prior offenses for sentencing purposes provides as follows:
In the case of multiple prior convictions, for the purpose of computing the offender score, count all convictions separately, except:
(i) Prior offenses which were found, under RCW 9.94A.400(1)(a), to encompass the same criminal conduct, shall be counted as one offense, the offense that yields the highest offender score. The current sentencing court shall determine with respect to other prior adult offenses for which sentences were served concurrently or prior juvenile offenses for which sentences were served consecutively, whether those offenses shall be counted as one offense or as separate offenses using the `same criminal conduct’ analysis found in RCW 9.94A.400(1)(a), and if the court finds that they shall be counted as one offense, then the offense that yields the highest offender score shall be used.
RCW 9.94A.360(5)(a).
Under RCW 9.94A.400(1)(a), two or more crimes are considered the same criminal conduct if they require the same criminal intent, are committed at the same time and place, and involve the same victim. State v. Channon, 105 Wn. App. 869, 876-77, 20 P.3d 476, review denied, 144 Wn.2d 1017
(2001). The absence of any one of these elements prevents a same criminal conduct finding. Channon, 105 Wn. App. at 877, (citing State v. Vike, 125 Wn.2d 407, 410, 885 P.2d 824 (1994)).
In re Personal Restraint of Connick, 144 Wn.2d 442, 28 P.3d 729
(2001), a case issued after the parties filed their briefs, disposes of White’s contention. The Washington Supreme Court in Connick held that once a defendant agrees to an offender score that counts his prior offenses separately, the defendant cannot subsequently challenge the sentencing court’s failure to consider some of those prior offenses as the same criminal conduct. Connick, 144 Wn.2d at 461-64. The court noted that under the Sentencing Reform Act, the defense’s acknowledgment allows a judge to rely on unchallenged facts and information introduced for sentencing purposes. Connick, 144 Wn.2d at 464 (citing State v. Ford, 137 Wn.2d 472, 482-83, 973 P.2d 452 (1999)).
By stipulating to his offender score, White agreed to count his prior juvenile offenses separately. Consequently, he waived his right to challenge the sentencing court’s reliance on his own stipulation that his juvenile offenses would count separately. Connick, 144 Wn.2d at 464; see also State v. Nitsch, 100 Wn. App. 512, 521-22, 997 P.2d 1000, review denied, 141 Wn.2d 1030 (2000) (defendant’s explicit statement of standard range was an implicit assertion that his crimes were not the same criminal conduct and was properly relied on by the sentencing court).
Affirmed.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
WE CONCUR: SEINFELD, J., ARMSTRONG, C.J.