State Of Washington, Respondent V David W. Blankenchip, Appellant

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CGUP t OF A PPrA!S
2013 JUti t 1 : 41
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B Y
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DAVID W. BLANKENCHIP, UNPUBLISHED OPINION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.C.	J. —	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-in offense
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.S.CONST. amend. VI;WASH. CONST. art. I, §	22; State v. Pelky, 109
Wn.2d 484, 488, 745 P.2d 854 (1987).These provisions operate to guarantee the defendant has
sufficient notice of the charges he faces. State v. Peterson, 133 Wn.2d 885, 889, 948 P.2d 381
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 10.61.	006,and where a
defendant is convicted of a crime which is an inferior degree pursuant to RCW 10.61.	003.
Peterson, 133 Wn.2d at 889.
RCW 10.61.	006 allows a trial court to find an accused guilty of a crime not charged if it
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.2d 443, 447 -48, 584 P.2d 382 (1978).Therefore, if it is
possible to commit the greater offense without necessarily committing the lesser, the latter is not
an included crime. Pelky, 109 Wn.2d at 488 (citing State v. Bishop, 90 Wn.2d 185, 191, 580
P.2d 259 (1978)).
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.52.	025. A conviction for fourth degree
assault requires proof that a person assaulted another in circumstances not amounting to first,
second, or third degree assault. RCW 9A.36.	041.
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No. 43797 -0 -	II
The term assault itself is not statutorily defined so Washington courts apply the common
law definition. State v. Stevens, 158 Wn.2d 304, 310 -11, 143 P.3d 817 (2006). Washington
recognizes three common law definitions of assault: (1)an attempt, with unlawful force, to inflict
bodily injury upon another; (2)an unlawful touching with criminal intent; and (3)putting another
in apprehension of harm whether or not the actor intends to inflict or is incapable of inflicting
that harm. Stevens, 158 Wn.2d at 311. Applying these definitions, it is clear that assault is not
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.2d 450
1.	998).
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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 10.61.	003 which provides:
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 (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. Peterson, 133 Wn.2d at 891 (citing State v. Foster, 91 Wn.2d 466, 472, 589 P.2d 789
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
burglary and the statute under which he was convicted proscribes fourth degree assault. See
RCW 9A.52.	025;RCW 9A.36.	041. Moreover, 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.
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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
2.	06.	040,it is so ordered.
v
r
Johanson, A.C.	J.
We concur: