Mainsail
Member
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
PER CURIAM - After a road rage confrontation, the State charged Michael
Relfe with one count of first degree assault for shooting James Lee. In his
personal restraint petition Relfe claims that his trial counsel was ineffective in
failing to request a jury instruction on the lesser included offense of second degree
assault. Because there was no legitimate reason to not request an instruction on
second degree assault based on the facts of this case, we grant Relfe's personal
restraint petition, reverse his conviction and remand for a new trial.
FACTS
While they were both stopped at a traffic light, Michael Relfe and James Lee
exchanged obscene hand gestures. Lee followed Relfe in his flatbed truck,
No. 57440-0-I/2
sideswiped Relfe's car on the driver's side, and then drove away. Relfe pursued
Lee in an attempt to get his license number. They stopped on the side of the road
three times. Each time Lee got out of his truck, came over to Relfe's car, reached
into the car and slapped and hit Relfe. The third time, Relfe picked up his
handgun, which was on the car seat. When Lee saw the gun, he turned around
and began to leave. Relfe fired one shot, hitting Lee in the back and causing
substantial injuries. Relfe told police that he only intended to scare Lee and did not
aim the gun at him.
The State charged Relfe with one count of first degree assault while armed
with a firearm. Relfe testified at the first trial, which resulted in a hung jury. Relfe
did not testify at the second trial, and the jury convicted him as charged. On
appeal, Relfe argued that the State elicited impermissible opinion testimony from a
detective. This court affirmed the conviction. Relfe timely filed a personal restraint
petition.
ANALYSIS
In his personal restraint petition, Relfe must show either: (1) actual and
substantial prejudice arising from constitutional error, or (2) nonconstitutional error
that inherently results in a "complete miscarriage of justice."1 Relfe contends that
trial counsel provided ineffective assistance of counsel when he failed to request
an instruction on the lesser crime of second degree assault. The State contends
1 In the Matter of the Pers. Restraint of Cook, 114 Wn.2d 802, 813, 792 P.2d 506 (1990); In
the Matter of the Pers. Restraint of Hews, 99 Wn.2d 80, 88, 660 P.2d 263 (1983).
-2-
No. 57440-0-I/3
Relfe was not entitled to an instruction on assault in the second degree. In the
alternative, the State argues the attorney's decision to not request an instruction
was tactical and therefore not ineffective. To prevail on a claim of ineffective
assistance of counsel, Relfe must overcome a strong presumption of reasonable
assistance2 and show that his attorney's representation was both deficient and
prejudicial to his defense.3
A jury may convict a defendant of any lesser degree of a crime or any lesser
included crime.4 "A defendant is entitled to an instruction on a lesser included
offense if two conditions are met: each of the elements of the lesser offense must
be elements of the offense charged (the legal prong), and the evidence must
support an inference that only the lesser crime was committed (the factual prong)."5
The State concedes the legal prong is met because second degree assault is a
lesser included offense of first degree assault. But the State argues that the
evidence shows that Relfe had the requisite intent for first degree assault, negating
the conclusion that he committed only second degree assault. In determining the
factual prong, we consider the evidence in the light most favorable to Relfe.6
2 In the Matter of the Pers. Restraint of Pirtle, 136 Wn.2d 467, 487, 965 P.2d 593 (1998),
citing Strickland v. Washington, 466 U.S. 682, 689, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
3 Strickland, 466 U.S. at 686; State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251
(1995).
4 RCW 10.61.003; State v. Tamalini, 134 Wn.2d 725, 732, 953 P.2d 450 (1998).
5 State v. Ward, 125 Wn. App. 243, 248, 104 P.3d 670 (2004), citing State v. Workman, 90
Wn.2d 443, 447-48, 584 P.2d 382 (1978).
6 State v. Fernandez-Medina, 141 Wn.2d 448, 455-56, 6 P.3d 1150 (2000).
-3-
No. 57440-0-I/4
First degree assault requires that a defendant intended to inflict great bodily
harm to the victim.7 Second degree assault requires that the defendant intended to
assault the victim and cause substantial bodily harm, but unlike first degree
assault, did not act with the intent to inflict great bodily harm.8 A review of the
record in the light most favorable to Relfe shows that there is evidence that Relfe
did not intend to cause great bodily harm to Lee.
At the time of the shooting, Lee was hitting and slapping Relfe for the third
time while Relfe sat inside his car. The shooting occurred after Lee hit Relfe's car
with his truck once and stopped three times to come over and physically attack
Relfe in his car. Although Relfe did not testify at the second trial, the court
admitted into evidence the statement he gave to police officers after the incident.
This statement includes the following exchange:
DET: Now when you shot him, what was, what were your
intentions when you used your weapon?
SUS: Just to scare him.
And the statement included this further exchange:
DET: Okay when you shot your revolver, were you ...
SUS: I wasn't aimin at him.
DET: Okay.
SUS: I was just, I just pointed it.
DET: You pointed it.
SUS: Yeah.
DET: In his direction though.
SUS: Well yeah, to scare him.
7 RCW 9A.36.011.
8 RCW 9A.36.021.
-4-
No. 57440-0-I/5
The State argues that the fact that Lee was close to Relfe's car when Relfe
shot the gun shows that Relfe intended to cause great bodily harm. But Relfe says
in his statement that he was not aiming the gun at Lee, but pointing it generally in
Lee's direction in an effort to scare off Lee and protect himself. Thus, Relfe
specifically and expressly disclaims an intent to cause Lee great bodily harm.
Whether the jury would have accepted this disclaimer is not for us to decide; the
question is whether there is sufficient evidence to support an inference that Relfe
only committed second degree assault. We conclude that the evidence supports
such an inference.
The State also argues that trial counsel's decision to not seek an instruction
on second degree assault was a tactical decision to focus on self defense because
this was the only viable defense. But as in Ward, which is nearly identical to this
case, the "all or nothing" strategy of attempting to force the jury to acquit on the
greater crime without the ability to consider a possible compromise on the lesser
crime was not reasonable. The defendant in Ward was charged with second
degree assault for opening his jacket and showing two men that he had a gun in
order to scare them. On appeal, Ward questioned trial counsel's failure to seek an
instruction on the lesser crime of unlawful display of a weapon, a lesser included
gross misdemeanor. Ward testified that he believed the two men who were trying
to repossess his car in the middle of the night were trying to steal the car. This
court concluded Ward should have been allowed to have an instruction on the
-5-
No. 57440-0-I/6
lesser crime. First, the court cited the significant difference in penalties for the two
crimes. Second, that Ward's theory of self defense would have been the same for
both crimes and if the jury believed Ward acted lawfully, it would acquit on both.
But if the jury did not believe Ward, but doubted he pointed the gun, they jury
would only convict him on the lesser included offense. Last, the court concluded
that relying solely on self-defense was a risky approach because it relied for the
most part on Ward's credibility.
Here, the difference between the penalties for first and second degree
assault is significant. The standard range sentence for first degree assault is 93 to
123 months while the standard range sentence for second degree assault is 3 to 9
months. And Relfe's defense would have been the same for first and second
degree assault: that he was acting in self-defense. Therefore, as in Ward, giving
an instruction on second degree assault would have cost Relfe little: if the jury
believed Relfe acted in self defense, it would have acquitted of both crimes; if the
jury believed that Relfe intended to shoot the gun but not to injure Lee, it would
have convicted of second degree assault. Further, as in Ward the trial court
imposed an exceptional sentence below the standard range, indicating a
reasonable possibility that the jury might have convicted of second degree assault
if given the opportunity.
Relying solely on Relfe's claim of self-defense to attempt to avoid conviction
of first degree assault Relfe's trial counsel used an "all or nothing" approach.
But a defendant is entitled to a lesser offense instruction
-6-
No. 57440-0-I/7
... precisely because he should not be exposed to the
substantial risk that the jury's practice will diverge from theory.
Where one of the elements of the offense charged remains
in doubt, but the defendant is plainly guilty of some offense,
the jury is likely to resolve its doubts in favor of conviction.9
As in Ward, we conclude there was no legitimate reason not request an instruction
on second degree assault and the instructional error inherently results in a
complete miscarriage of justice.10
CONCLUSION
We reverse and remand for a new trial.
F
OR THE COURT:
9 Ward, 125 Wn. App. at 250-51, citing Keeble v. United States, 412 U.S. 205, 212-13, 93
S. Ct. 1993, 36 L. Ed.2d 844 (1973).
10 Because we reverse the conviction on this ground, we need not address the other issues,
including ineffective assistance of appellate counsel.
PER CURIAM - After a road rage confrontation, the State charged Michael
Relfe with one count of first degree assault for shooting James Lee. In his
personal restraint petition Relfe claims that his trial counsel was ineffective in
failing to request a jury instruction on the lesser included offense of second degree
assault. Because there was no legitimate reason to not request an instruction on
second degree assault based on the facts of this case, we grant Relfe's personal
restraint petition, reverse his conviction and remand for a new trial.
FACTS
While they were both stopped at a traffic light, Michael Relfe and James Lee
exchanged obscene hand gestures. Lee followed Relfe in his flatbed truck,
No. 57440-0-I/2
sideswiped Relfe's car on the driver's side, and then drove away. Relfe pursued
Lee in an attempt to get his license number. They stopped on the side of the road
three times. Each time Lee got out of his truck, came over to Relfe's car, reached
into the car and slapped and hit Relfe. The third time, Relfe picked up his
handgun, which was on the car seat. When Lee saw the gun, he turned around
and began to leave. Relfe fired one shot, hitting Lee in the back and causing
substantial injuries. Relfe told police that he only intended to scare Lee and did not
aim the gun at him.
The State charged Relfe with one count of first degree assault while armed
with a firearm. Relfe testified at the first trial, which resulted in a hung jury. Relfe
did not testify at the second trial, and the jury convicted him as charged. On
appeal, Relfe argued that the State elicited impermissible opinion testimony from a
detective. This court affirmed the conviction. Relfe timely filed a personal restraint
petition.
ANALYSIS
In his personal restraint petition, Relfe must show either: (1) actual and
substantial prejudice arising from constitutional error, or (2) nonconstitutional error
that inherently results in a "complete miscarriage of justice."1 Relfe contends that
trial counsel provided ineffective assistance of counsel when he failed to request
an instruction on the lesser crime of second degree assault. The State contends
1 In the Matter of the Pers. Restraint of Cook, 114 Wn.2d 802, 813, 792 P.2d 506 (1990); In
the Matter of the Pers. Restraint of Hews, 99 Wn.2d 80, 88, 660 P.2d 263 (1983).
-2-
No. 57440-0-I/3
Relfe was not entitled to an instruction on assault in the second degree. In the
alternative, the State argues the attorney's decision to not request an instruction
was tactical and therefore not ineffective. To prevail on a claim of ineffective
assistance of counsel, Relfe must overcome a strong presumption of reasonable
assistance2 and show that his attorney's representation was both deficient and
prejudicial to his defense.3
A jury may convict a defendant of any lesser degree of a crime or any lesser
included crime.4 "A defendant is entitled to an instruction on a lesser included
offense if two conditions are met: each of the elements of the lesser offense must
be elements of the offense charged (the legal prong), and the evidence must
support an inference that only the lesser crime was committed (the factual prong)."5
The State concedes the legal prong is met because second degree assault is a
lesser included offense of first degree assault. But the State argues that the
evidence shows that Relfe had the requisite intent for first degree assault, negating
the conclusion that he committed only second degree assault. In determining the
factual prong, we consider the evidence in the light most favorable to Relfe.6
2 In the Matter of the Pers. Restraint of Pirtle, 136 Wn.2d 467, 487, 965 P.2d 593 (1998),
citing Strickland v. Washington, 466 U.S. 682, 689, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
3 Strickland, 466 U.S. at 686; State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251
(1995).
4 RCW 10.61.003; State v. Tamalini, 134 Wn.2d 725, 732, 953 P.2d 450 (1998).
5 State v. Ward, 125 Wn. App. 243, 248, 104 P.3d 670 (2004), citing State v. Workman, 90
Wn.2d 443, 447-48, 584 P.2d 382 (1978).
6 State v. Fernandez-Medina, 141 Wn.2d 448, 455-56, 6 P.3d 1150 (2000).
-3-
No. 57440-0-I/4
First degree assault requires that a defendant intended to inflict great bodily
harm to the victim.7 Second degree assault requires that the defendant intended to
assault the victim and cause substantial bodily harm, but unlike first degree
assault, did not act with the intent to inflict great bodily harm.8 A review of the
record in the light most favorable to Relfe shows that there is evidence that Relfe
did not intend to cause great bodily harm to Lee.
At the time of the shooting, Lee was hitting and slapping Relfe for the third
time while Relfe sat inside his car. The shooting occurred after Lee hit Relfe's car
with his truck once and stopped three times to come over and physically attack
Relfe in his car. Although Relfe did not testify at the second trial, the court
admitted into evidence the statement he gave to police officers after the incident.
This statement includes the following exchange:
DET: Now when you shot him, what was, what were your
intentions when you used your weapon?
SUS: Just to scare him.
And the statement included this further exchange:
DET: Okay when you shot your revolver, were you ...
SUS: I wasn't aimin at him.
DET: Okay.
SUS: I was just, I just pointed it.
DET: You pointed it.
SUS: Yeah.
DET: In his direction though.
SUS: Well yeah, to scare him.
7 RCW 9A.36.011.
8 RCW 9A.36.021.
-4-
No. 57440-0-I/5
The State argues that the fact that Lee was close to Relfe's car when Relfe
shot the gun shows that Relfe intended to cause great bodily harm. But Relfe says
in his statement that he was not aiming the gun at Lee, but pointing it generally in
Lee's direction in an effort to scare off Lee and protect himself. Thus, Relfe
specifically and expressly disclaims an intent to cause Lee great bodily harm.
Whether the jury would have accepted this disclaimer is not for us to decide; the
question is whether there is sufficient evidence to support an inference that Relfe
only committed second degree assault. We conclude that the evidence supports
such an inference.
The State also argues that trial counsel's decision to not seek an instruction
on second degree assault was a tactical decision to focus on self defense because
this was the only viable defense. But as in Ward, which is nearly identical to this
case, the "all or nothing" strategy of attempting to force the jury to acquit on the
greater crime without the ability to consider a possible compromise on the lesser
crime was not reasonable. The defendant in Ward was charged with second
degree assault for opening his jacket and showing two men that he had a gun in
order to scare them. On appeal, Ward questioned trial counsel's failure to seek an
instruction on the lesser crime of unlawful display of a weapon, a lesser included
gross misdemeanor. Ward testified that he believed the two men who were trying
to repossess his car in the middle of the night were trying to steal the car. This
court concluded Ward should have been allowed to have an instruction on the
-5-
No. 57440-0-I/6
lesser crime. First, the court cited the significant difference in penalties for the two
crimes. Second, that Ward's theory of self defense would have been the same for
both crimes and if the jury believed Ward acted lawfully, it would acquit on both.
But if the jury did not believe Ward, but doubted he pointed the gun, they jury
would only convict him on the lesser included offense. Last, the court concluded
that relying solely on self-defense was a risky approach because it relied for the
most part on Ward's credibility.
Here, the difference between the penalties for first and second degree
assault is significant. The standard range sentence for first degree assault is 93 to
123 months while the standard range sentence for second degree assault is 3 to 9
months. And Relfe's defense would have been the same for first and second
degree assault: that he was acting in self-defense. Therefore, as in Ward, giving
an instruction on second degree assault would have cost Relfe little: if the jury
believed Relfe acted in self defense, it would have acquitted of both crimes; if the
jury believed that Relfe intended to shoot the gun but not to injure Lee, it would
have convicted of second degree assault. Further, as in Ward the trial court
imposed an exceptional sentence below the standard range, indicating a
reasonable possibility that the jury might have convicted of second degree assault
if given the opportunity.
Relying solely on Relfe's claim of self-defense to attempt to avoid conviction
of first degree assault Relfe's trial counsel used an "all or nothing" approach.
But a defendant is entitled to a lesser offense instruction
-6-
No. 57440-0-I/7
... precisely because he should not be exposed to the
substantial risk that the jury's practice will diverge from theory.
Where one of the elements of the offense charged remains
in doubt, but the defendant is plainly guilty of some offense,
the jury is likely to resolve its doubts in favor of conviction.9
As in Ward, we conclude there was no legitimate reason not request an instruction
on second degree assault and the instructional error inherently results in a
complete miscarriage of justice.10
CONCLUSION
We reverse and remand for a new trial.
F
OR THE COURT:
9 Ward, 125 Wn. App. at 250-51, citing Keeble v. United States, 412 U.S. 205, 212-13, 93
S. Ct. 1993, 36 L. Ed.2d 844 (1973).
10 Because we reverse the conviction on this ground, we need not address the other issues,
including ineffective assistance of appellate counsel.
