                                                                                   FILE
                                                                          CGUP t OF A PPrA!S
                                                                        2013 JUti t 1 :
                                                                                                41

                                                                                          HINGTQ .
                                                                        BY




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                        DIVISION II

STATE OF WASHINGTON,                                              No. 43797 0 II
                                                                            - -


                             Respondent,

        V.



DAVID W. BLANKENCHIP,                                      UNPUBLISHED OPINION




        JOHANSON, A. .
                  J.
                   C          David W. Blankenchip appeals his conviction for fourth degree
                               —


assault. The State charged Blankenchip with residential burglary,but the trial court convicted
                                                                 _

him of fourth degree assault as a lesser -included offense following a bench trial. Blankenchip

argues, and the State concedes, that his conviction was improper because fourth degree assault is
not a lesser -included offense or a lesser degree offense of residential burglary. We accept the

State's concession and reverse Blankenchip's conviction.

                                             FACTS


        On April 8, 2012, David Blankenchip spent the day with Erin Shallcross, whom he had
been   dating.   In the early morning hours, Shallcross and Blankenchip engaged in a verbal

altercation. In the midst of the argument Shallcross left her residence and went to her friend Sara
Stewart's residence, where she went to   sleep in the bedroom. Shortly thereafter, Blankenchip

also went to Stewart's residence to request the return of money he loaned Shallcross and to
No. 43797 0 II
          - -



sever the     relationship." Verbatim Report of Proceedings ( VRP) July 31, 2012) at 77.
                                                                   (

Shallcross, Stewart, and Stewart's daughter were asleep in the home. Blankenchip entered the

residence unannounced where he found Shallcross asleep in the bedroom. After Shallcross and

Blankenchip again exchanged words, Blankenchip hit Shallcross on the right side of her face.

       The State charged Blankenchip with residential burglary committed against a family or

household member. After a bench trial, the trial court concluded that Blankenchip did not enter

or remain in Stewart's residence unlawfully because he had implied permission to enter. The

trial court concluded further that Blankenchip did not intend to commit a crime at the time of his

entry. Accordingly, the court found Blankenchip not guilty of residential burglary. Instead, the
trial court found Blankenchip guilty of fourth degree assault as a lesser -included offense.

       Blankenchip objected to the court's determination that fourth degree assault was a lesser -
included crime of residential burglary and to Blankenchip's conviction for that crime because the

State did not charge him assault. The trial judge responded, Good. Appeal me."VRP
                                                             "

July 31, 2012) at 97. Moreover, Blankenchip also filed a presentence memorandum in which
counsel again objected and explained that fourth degree assault was not a lesser- n offense
                                                                                i
of the charged crime. The trial court nevertheless sentenced Blankenchip. Blankenchip appeals.
                                              ANALYSIS


                                     A. Lesser -Included Offense


        Blankenchip contends that his conviction must be reversed because the State did not
properly charge him with assault and because fourth degree assault is not a lesser-
                                                                                  included
offense of residential   burglary. The State concedes that Blankenchip cannot be convicted of

fourth degree assault because it is not a lesser -included offense, and that reversal is required. We

 agree and   accept the State's concession.
No. 43797 0 II
          - -



       Both the Sixth Amendment and the Washington 'Constitution contain provisions that

grant a defendant the right to be informed of the charges against him and to be tried only for
those offenses   charged.   U. .CONST. amend. VI;WASH. CONST. art. I, § State
                             S                                        22;            v. Pelky, 109

Wn. d 484, 488, 745 P. d 854 (1987).These provisions operate to guarantee the defendant has
  2                  2

sufficient notice of the charges he faces. State v. Peterson, 133 Wn. d 885, 889, 948 P. d 381
                                                                    2                  2

1997).But these rules are subject to two statutory exceptions: where a defendant is convicted
of a lesser -included offense of the one charged pursuant to RCW 10. 1. and where a
                                                                 006,
                                                                   6

defendant is convicted of a crime which is an inferior degree pursuant to RCW 10. 1.
                                                                              003.
                                                                                6

Peterson, 133 Wn. d at 889.
                2

       RCW 10. 1.allows a trial court to find an accused guilty of a crime not charged if it
           006
             6

is "an offense the commission of which is necessarily included within that with which he or she

is charged in the indictment or information." It is appropriate for a court to consider a lesser -
included offense when: 1)each of the elements of the lesser offense is a necessary element of
                       (
the offense charged, and (2)the evidence supports an inference that the lesser crime was
committed. State v. Workman, 90 Wn. d 443, 447 48, 584 P. d 382 (1978).Therefore, if it is
                                  2            -        2

possible to commit the greater offense without necessarily committing the lesser, the latter is not
an included crime. Pelky, 109 Wn. d at 488 (citing State v. Bishop, 90 Wn. d 185, 191, 580
                                2                                        2

P. d 259 (1978)).
 2

        Residential burglary, with which Blankenchip was charged here, requires the State to

prove that the accused unlawfully entered,or remained in a dwelling with intent to commit a
crime therein    against   persons   or   property. RCW 9A. 2. A conviction for fourth degree
                                                        025.
                                                          5


assault requires proof that a person assaulted another in circumstances not amounting to first,
 second, or third degree assault. RCW 9A. 6.
                                      041.
                                        3
                                                     9
No. 43797 0 II
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          The term assault itself is not statutorily defined so Washington courts apply the common

law definition.      State v. Stevens, 158 Wn. d 304, 310 11, 143 P. d 817 (2006). Washington
                                             2            -        3

recognizes three common law definitions of assault: 1) attempt, with unlawful force, to inflict
                                                    ( an

bodily injury upon another; 2) unlawful touching with criminal intent; and (3)
                            ( an                                             putting another

in apprehension of harm whether or not the actor intends to inflict or is incapable of inflicting
that harm. Stevens, 158 Wn. d at 311. Applying these definitions, it is clear that assault is not
                          2

necessarily or invariably included among the elements of residential burglary because it is

possible to commit the latter without committing the former.
          Assault is    a   crime committed   by   one   person   against   another.   Residential burglary as

defined above involves unlawful entrance .into a dwelling with the intent to commit a crime

against    persons     or   property.   Residential burglary may be, and often is, committed when

someone enters a home for the purpose of theft when the owners are away. Moreover, a person

could unlawfully enter a dwelling with the intent to commit arson, vandalism, or malicious
mischief among other things. In these instances, no assault would necessarily occur, but a person

committing one of the aforementioned acts would nevertheless be guilty of residential burglary.
Thus, because there are alternative means of committing residential burglary without necessarily

committing fourth degree assault, the latter is not a lesser -included crime.

                                          B. Lesser Degree Offense

          Blankenchip's conviction for fourth degree assault would be proper if fourth degree
assault were an inferior degree offense of residential burglary, notwithstanding the fact that such

a charge did not appear in the information. State v. Tamalini, 134 Wn.2d 725, 731, 953 P. d 450
                                                                                        2
1.
 998).


                                                          11
No. 43797 0 II
          - -



       This second exception to the requirement that a criminal defendant may be convicted

only of those crimes charged in the information is codified in RCW 10. 1.which provides:
                                                                   003
                                                                     6
       Upon an indictment or information for an offense consisting of different degrees,
       the jury may find the defendant not guilty of the degree charged in the indictment
       or information, and guilty of any degree inferior thereto, or of an attempt to
       commit the offense.


       A crime is an inferior degree of another when ( ) statutes for both the charged offense
                                                     1 the
and the    proposed   inferior   degree offense "`
                                                 proscribe    but   one   offense, "' ( )the information
                                                                                      2

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. Peterson, 133 Wn. d at 891 (citing State v. Foster, 91 Wn. d 466, 472, 589 P. d 789
                         2                                        2                  2

1979)).

          Here, neither of the first   two elements is met.     The statutes do not proscribe but one

offense.     Rather, the statute under which Blankenchip was charged proscribes residential
            and the statute under which he          convicted   proscribes fourth degree    assault. See
burglary                                      was




RCW 9A. 2.RCW 9A. 6. Moreover,
    025;
      5       041.
                3                                       assault is not an inferior degree of the crime

charged because residential burglary is not divided into degrees at all.

          Because fourth degree assault is not a lesser -included offense nor an inferior degree of
residential burglary, Blankenchip's conviction for fourth degree assault must be reversed.
Because we reverse the conviction it is unnecessary for us to examine the alleged defects in the

judgment and sentence.




                                                    5
No. 43797 0 II
          - -



       We reverse.


       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 in accordance with RCW

040,
2.6.it is so ordered.
  0
                                                                            v
                                                                                r


                                                               Johanson, A. .
                                                                         J.
                                                                          C
We   concur:
