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Court of Appeals Division I
State of Washington

Opinion Information Sheet

			

       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                          )         No. 66316-0-I
                                              )
                      Respondent,             )         DIVISION ONE
                                              )
              v.                              )
                                              )
DERRICK MICAH MORRIS,                         )         UNPUBLISHED
                                              )
                      Appellant.              )         FILED: June 4, 2012
                                              )
                                              )

       Cox, J.  --  Second degree assault by strangulation requires the State to 
prove an assault of another by strangulation of that person.1  "Strangulation"

means "to compress a person's neck, thereby obstructing the person's blood 

flow or ability to breathe, or doing so with the intent to obstruct the person's 
blood flow or ability to breathe . . . ."2  

       N.K., the victim of the assault in this case testified that Derrick Morris

grabbed her by the neck when she tried to escape from his vehicle, 

consequently obstructing her ability to breathe.  Accordingly, the State bore its 

       1 RCW 9A.36.021(1)(g).

       2 RCW 9A.04.110(26) (emphasis added). 

No. 66316-0-I/2

burden to prove beyond a reasonable doubt all essential elements of the 

charged offense.  There was no mandatory presumption that relieved the State 

of this burden.  We affirm.

       Morris picked up N.K. on Aurora Avenue with the aim of engaging her in 

an act of prostitution.  According to her testimony at trial, he told N.K. that he 

was an undercover police officer, but would not arrest her if she had sex with 

him.  N.K. did not believe Morris and opened the car door to get out.  As she did

so, Morris grabbed her by the neck, holding her in the bend of his elbows, and 

choked her.  She began to lose consciousness, but was eventually able to free 

herself and escape.

       The State charged Morris by amended information with second degree 

assault with the intent to commit rape.  In the alternative, the State also charged 

second degree assault by strangulation.  

       At trial, Morris also testified.  According to Morris, he picked up N.K. and 

when they got into a disagreement about the price of her services, she hit him.  

As N.K. exited his car, he pushed her out and called her derogatory names.  He 

denied choking her.

       During deliberations, the jury submitted the following question to the 

court:  

       On [the second degree assault by strangulation to-convict 
       instruction] in the Courts [sic] Instructions to the Jury, does it 
       require intentional strangulation or can the strangulation be 
       accidental as a result of the intentional assault'[3]  

       3 Clerk's Papers at 55.

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No. 66316-0-I/3

       Morris argued that the to-convict instruction required the strangulation

itself to be intentional and that the court should so instruct the jurors.  The trial 

court disagreed, and instead responded: "Please read [the to-convict instruction] 
in accordance with Instructions 5, 6, and 13."4     These instructions defined 

assault, intent, and strangulation, respectively.

       The jury found Morris guilty of second degree assault by strangulation 

and acquitted him of second degree assault with the intent to commit rape.  The 

trial court denied Morris's motion for an arrest of judgment or a new trial, which 

he based on the argument that second degree assault by strangulation requires 

both an intent to assault and an intent to strangle.  

       Morris appeals.

                               JURY INSTRUCTIONS

       Morris argues that the instruction for the second degree assault by 

strangulation charge in this case created a mandatory presumption that relieved 

the State of its burden to prove the elements of that charge.  Specifically, he 

argues that the State was required to prove that he intentionally strangled N.K. 

in order to convict him of second degree assault by strangulation.  Because the 

to-convict instruction did not include an intent element, he claims his conviction 

cannot stand.  We disagree.

       It is reversible error to instruct the jury in a manner that relieves the State 

of its burden to prove beyond a reasonable doubt every essential element of a 

       4 Id. at 56.

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No. 66316-0-I/4

criminal offense.5 This court analyzes a challenged jury instruction by 

considering the instructions as a whole and reading the challenged portions in 
context.6 Alleged errors in jury instructions are reviewed de novo.7

       "A mandatory presumption is one that requires the jury 'to find a 
presumed fact from a proven fact.'"8 To determine whether a jury instruction 

creates a mandatory presumption, the court examines whether a reasonable 
juror would interpret the presumption as mandatory.9 Mandatory presumptions

violate a defendant's right to due process if they relieve the State of its 

obligation to prove all of the elements of the crime charged beyond a reasonable 
doubt.10  

       When interpreting a statute, a court's fundamental objective is to 
ascertain and carry out the legislature's intent.11 "This involves giving effect to 

the plain meaning of the statute, if any, by taking into account the ordinary 

meaning of the words used as well as the context in which the statute appears, 

       5 State v. Hayward, 152 Wn. App. 632, 641-42, 217 P.3d 354 (2009) 
(quoting State v. Pirtle, 127 Wn.2d 628, 656, 904 P.2d 245 (1995)).

       6 Id. at 642 (citing Pirtle, 127 Wn.2d at 656-57).

       7 State v. Becklin, 163 Wn.2d 519, 525, 182 P.3d 944 (2008).

       8 Hayward, 152 Wn. App. at 642 (quoting State v. Deal, 128 Wn.2d 693, 
699, 911 P.2d 996 (1996)).

       9 Id. (citing Deal, 128 Wn.2d at 701).

       10 Id.; Deal, 128 Wn.2d at 701.

       11 In re Det. of Hawkins, 169 Wn.2d 796, 801, 238 P.3d 1175 (2010)
(citing State v. Jacobs, 154 Wn.2d 596, 600, 115 P.3d 281 (2005)).

                                               4 

No. 66316-0-I/5

including related provisions."12  In determining the plain meaning of a statute, the 

court cannot add words or clauses where the legislature has chosen not to 
include them.13 If the statute is unambiguous, the court's inquiry is at an end.14

       RCW 9A.36.021 defines assault in the second degree:

       (1) A person is guilty of assault in the second degree if he or 
       she, under circumstances not amounting to assault in the first 
       degree:

       (a) Intentionally assaults another and thereby recklessly inflicts 
       substantial bodily harm; or

       (b) Intentionally and unlawfully causes substantial bodily harm to 
       an unborn quick child by intentionally and unlawfully inflicting any 
       injury upon the mother of such child; or

       (c) Assaults another with a deadly weapon; or

       (d) With intent to inflict bodily harm, administers to or causes to be 
       taken by another, poison or any other destructive or noxious 
       substance; or

       (e) With intent to commit a felony, assaults another; or

       (f) Knowingly inflicts bodily harm which by design causes such pain 
       or agony as to be the equivalent of that produced by torture; or
       (g) Assaults another by strangulation or suffocation.[15]

"Assault" is not defined in the statute.  But our courts have held that a "specific 

intent either to create apprehension of bodily harm or to cause bodily harm is an 

       12 Id. (citing Jacobs, 154 Wn.2d at 600).

       13 State v. J.P., 149 Wn.2d 444, 450, 69 P.3d 318 (2003) (quoting State v. 
Delgado, 148 Wn.2d 723, 727, 63 P.3d 792 (2003)).

       14 State v. Armendariz, 160 Wn.2d 106, 110, 156 P.3d 201 (2007).

       15 (Emphasis added.)

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No. 66316-0-I/6

essential element" of second degree assault.16  

       The legislature has defined "strangulation." RCW 9A.04.110(26) states

that "'[s]trangulation' means to compress a person's neck, thereby obstructing 

the person's blood flow or ability to breathe, or doing so with the intent to 

obstruct the person's blood flow or ability to breathe . . . ." Thus, under the plain 

language of the statute, a person is guilty of second degree assault by 

strangulation in two circumstances.  First, if he intentionally assaults another by 

compressing that person's neck and actually obstructing either the person's 

blood flow or ability to breath.  Second, if he intentionally assaults another by 

compressing that person's neck with the intent to obstruct the person's blood 

flow or ability to breath.  Therefore, intent is only necessary if the defendant 

does not actually obstruct either the victim's blood flow or ability to breath.

       Here, the to-convict instruction tracked the first circumstance of the 

statutory language for second degree assault by strangulation.  It required the 

jury to find that the State proved beyond a reasonable doubt:

              (1)  That on or about February 11, 2010, the defendant 
       intentionally assaulted N.W.K. by strangulation; and
              (2)  That the act occurred in the State of Washington.[17]

"Intent,"  "assault," and "strangulation" were each separately defined in the 

following related instructions, none of which Morris challenges on appeal:

                                         No. 5

       16 State v. Byrd, 125 Wn.2d 707, 713, 887 P.2d 396 (1995).

       17 Clerk's Papers at 44.

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No. 66316-0-I/7

              An assault is an intentional touching or striking or cutting or 
       shooting 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 or cutting or shooting is offensive if 
       the touching or striking or cutting or shooting would offend an 
       ordinary person who is not unduly sensitive.

              An assault is also an act, with unlawful force, done with 
       intent to inflict bodily injury upon another, tending but failing to 
       accomplish it and accompanied with the apparent present ability to 
       inflict the bodily injury if not prevented.  It is not necessary that 
       bodily injury be inflicted.

              An assault is also an act, with unlawful force, done with the 
       intent to create in another apprehension 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.

                                         No. 6

              A person acts with intent or intentionally when acting with 
       the objective or purpose to accomplish a result that constitutes a 
       crime.
                                          . . . .

                                        No. 13

              Strangulation means to compress a person's neck in a 
       manner that obstructs the person's blood flow or ability to breathe, 
       or to compress a person's neck with the intent to obstruct the 
       person's blood flow or ability to breathe.[18]

Read together, these instructions accurately reflect what the State was required 

to prove for the charge of second degree assault by strangulation.  The only

intent that the State was required to prove was that necessary for assault.  

Under the circumstances of this case, where there is evidence that Morris 

compressed the victim's neck and her ability to breathe was actually obstructed, 

       18 Id. at 34-35, 42.

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No. 66316-0-I/8

there is no additional requirement to prove Morris intended that result.  

       Morris argues that neither RCW 9A.04.110(26) nor the jury instructions 

supplies the intent necessary for strangulation.  But, as we have explained 

above, there is no intent necessary for strangulation in this case.  Both the jury 

instruction and the statute's definition of strangulation distinguish between the 

intent necessary when the defendant actually obstructs the victim's blood flow or 

ability to breathe, and when he does not.  The plain words of the statute and the 

jury instruction only require "intent" in the latter case.  For the former, no intent is 

necessary.  

       Morris also argues that, because RCW 9A.36.021(1)(g) is silent on the 

intent necessary for the strangulation element, and because strict liability crimes 

are disfavored, the Legislature intended to require an intent to strangle.  But 

because intent is required for the assault, this is not a strict liability crime.  The 

fact that there is no additional intent requirement in RCW 9A.36.021(1)(g) for 

the strangulation is irrelevant.

       Next, Morris argues that RCW 9A.36.021(1)(g) is ambiguous and, under 

the rule of lenity, must be resolved in his favor.  We again disagree.

       The statute states that "[a] person is guilty of assault in the second 
degree if he or she . . . [a]ssaults another by strangulation or suffocation."19

Morris claims this is ambiguous because it can be read in one of two ways: 

either requiring a specific intent to strangle or not requiring a specific intent to

       19 RCW 9A.36.021(1).

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No. 66316-0-I/9

strangle.  Under the plain words of this statute, there is no intent requirement 

other than that required for assault.  In any event, the definition of strangulation 

found in RCW 9A.04.110(26) makes it patently clear that there is no additional 

intent requirement under the facts of this case.  That is because Morris 

obstructed N.K.'s blood flow or ability to breathe so the acts here fall under the 

first prong of the definition of strangulation.
       Finally, Morris argues that State v. Hayward20 and State v. Goble21 require 

reversal.  They do not.  

       In each of those cases, the court held that the trial court's instructions 
conflated the intent necessary to prove the crimes at issue.22  That is not the 

case here.   These instructions defining assault and strangulation correctly 

stated that intent was only necessary for the assault portion of the charge, not 

the strangulation portion.  Consequently, Hayward and Goble are not helpful.

       We affirm the judgment and sentence.

       20 152 Wn. App. 632, 217 P.3d 354 (2009).

       21 131 Wn. App. 194, 126 P.3d 821 (2005).

       22 Hayward, 152 Wn. App. at 644-45 (instruction was reversible error 
because it effectively collapsed second degree assault into an offense with only 
a single mental state instead of requiring two mental states, one for the assault 
and one for the result); Goble, 131 Wn. App. at 196 (instruction allowed the jury 
to presume that defendant knew the assaulted deputy was acting in his official 
capacity during the incident if it found he intentionally assaulted the deputy, 
which conflated the intent and knowledge elements required under the to-convict 
instruction into a single element).

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No. 66316-0-I/10

WE CONCUR:

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