Opinion Information Sheet

			

In re Pers. Restraint of Heidari, No. 85653-2
Concurrence/Dissent by J.M. Johnson, J.

                                     No. 85653-2

       J.M. JOHNSON, J. (concurring/dissenting) -- I agree with the majority 

that the jury in this instance did not necessarily find every element of 

attempted second degree child molestation.  This was true because the crime 

charged (molestation of a child) did not require a finding of specific intent.  

However, the majority has written too broadly.  We decide only that a 

conviction of a lesser crime may not be entered here.             In most cases, with 

different charged crimes, such resolution is available.

       The law in Washington allows an appellate court to direct the entry of 

judgment for a lesser included offense (1) where the jury necessarily found 

every element of the lesser included offense in reaching its verdict and (2) the 

defendant is not unduly prejudiced.  Whether or not the jury was instructed on 

the lesser included offense is not alone dispositive.  This lawful practice of 

entering a conviction on a lesser crime also has the significant coincidental  

In re Pers. Restraint of Heidari, No. 85653-2

benefit of not forcing victims to endure another trial.

       Washington  Rules of  Appellate Procedure (RAP) provide appellate 

courts with the authority to "reverse, affirm, or modify the decision being 

reviewed and take any other action as the merits of the case and the interest 

of justice may require."   RAP 12.2.  This rule echoes Hill's Code of 

Procedure section 1429, which was approved by the legislature in 1891: "The 

supreme court may affirm, reverse or modify any judgment or order appealed 

from, and may direct the proper judgment to be entered, or direct a new trial 

or further proceedings to be had."  Laws of 1891, ch. 146, § 28, at 349.             For 

over a century, our courts have interpreted this language to give appellate 

courts the power to direct the entry of judgment for a lesser included offense 

when the evidence is insufficient to sustain a conviction on the greater charge 

but the jury necessarily found all the elements of the lesser offense by 

convicting the defendant.  See State v. Freidrich, 4 Wash. 204, 225, 29 P. 

1055, 30 P. 328, 31 P. 332 (1892) (vacating a first degree murder conviction 

for lack of evidence of premeditation and remanding "with instructions to 

enter a new judgment of murder in the second degree").  This long standing 

practice has been explicitly approved by the United States Supreme Court.  

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See Rutledge v. United States, 517 U.S. 292, 306, 116 S. Ct. 1241, 134 L. 

Ed. 2d 419 (1996) (Federal appellate courts "have uniformly concluded that 

they may direct the entry of judgment for a lesser included offense when a 

conviction for a greater offense is reversed on grounds that affect only the 

greater offense.     This  Court has noted the use of such a practice with 

approval." (citations omitted)).

       In this case, the State conceded there  was insufficient evidence of 

"sexual contact" to support Mansour Heidari's conviction for second degree 

child molestation and asked the Court of Appeals to direct the entry of 

judgment  for the lesser included offense -- attempted second degree child 

molestation.  The Court of Appeals refused, holding that it lacked the 

authority because the jury had not been instructed on the lesser offense.  In re 

Pers. Restraint of Heidari, 159 Wn. App. 601, 616, 248 P.3d 550 (2011). 

The court based its conclusion on our statement in State v. Green, 94 Wn.2d 

216, 234, 616 P.2d 628 (1980): "In general, a remand for simple resentencing 

on a 'lesser included offense' is only permissible when the jury has been 

explicitly instructed thereon."

       This qualified language in Green has  often been disregarded by the 

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Court of Appeals after it was classified as "dictum . . . unsupported by any 

citation to authority" in State v. Gilbert, 68 Wn. App. 379, 384-85, 842 P.2d 

1029 (1993) (footnote omitted).  However, the majority correctly notes that

Green did provide citations after the next sentence.  See Green, 94 Wn.2d at 

234 (citing State v. Jones, 22 Wn. App. 447, 454, 591 P.2d 796 (1979); State 

v. Martell, 22 Wn. App. 415, 419, 591 P.2d 789 (1979); State v. Liles, 11 

Wn. App. 166, 171-73, 521 P.2d 973 (1974); People v. Codding, 191 Colo. 

168, 551 P.2d 192 (1976); United States v. Thweatt, 140 U.S. App. D.C. 

120, 433 F.2d 1226, 1234 (1970); Austin v. United States, 127 U.S. App. 

D.C. 180, 382 F.2d 129, 142 (1967)).          In most of the cited cases, where an 

appellate court ordered a conviction reduced to a lesser included offense, 

instructions had been given to the jury regarding the lesser offense.  But these 

cases do not hold or imply that a jury instruction on the lesser offense is 

required before an appellate court may order this remedy.  At most, they 

demonstrate that in  most  cases where this remedy was ordered a jury 

instruction was given below.

       Green went on to state, "Based on the giving of such an instruction it 

has been held that the jury necessarily had to have disposed of the elements 

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of the lesser included offense to have reached the verdict on the greater 

offense."  94 Wn.2d at 234.  But, "[a] jury is generally instructed not to return 

a verdict on a lesser included offense once it has found the defendant guilty of 

the greater offense."  Rutledge, 517 U.S. at 306 n.16.  This is the law in 

Washington.  When a lesser included offense is submitted to the jury, the jury 

is instructed to consider the greater crime first and render a verdict if it 

unanimously agrees the defendant is guilty.  11A  Washington Practice: 

Washington Pattern Jury Instructions: Criminal 155.00, at 626 (3d ed. 2008).  

If the jury reaches a unanimous verdict that the defendant is guilty of the 

greater crime, there is no reason to consider the lesser offense.  Green gives 

no explanation why an appellate court's authority to remand for sentencing on 

a lesser included offense should depend upon whether the jury was instructed 

on a charge it did not even consider.  The majority offers no more guidance.

       Furthermore, the statement at issue in Green was not essential to the

outcome.  In Green, the defendant was convicted of aggravated first degree 

murder based upon an allegation he murdered the eight-year-old victim in the 

course of a rape or kidnapping.  Green, 94 Wn.2d at 222. We held there was 

insufficient evidence to support the conviction if it was based on kidnapping.  

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Id.  at 230.   Because the verdict form did not require the jury to specify 

whether it found the death occurred in the course of first degree kidnapping or 

first degree rape, it was impossible to know if the jury based its verdict upon 

a unanimous determination that he committed rape.  Id. at 233.  The State 

requested the court remand for sentencing on the lesser included offense of 

first degree murder, but that crime was also dependent upon proof of rape.  

Id. at 234-35.  Therefore, even if the jury had been instructed on the lesser 

included offense in Green, Green's conviction required reversal because there 

was no "clear disclosure" in the record that the "trier of fact expressly found 

each of the elements of the lesser offense."  Id. at 235.

       The appropriate outcome in Heidari's case does not require overruling 

Green, as the majority suggests.  We need only acknowledge the Green court 

was not absolute; thus the analysis was worded in qualified terms.  See id. at 

234 ("In general, . . . simple resentencing on a 'lesser included offense' is 

only permissible when the jury has been explicitly instructed thereon." 

(emphasis added)).

       Interestingly, two cases relied upon by Green came out of the District 

of Columbia Circuit, including Austin, 382 F.2d at 142.1  While the                  jury 

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in Austin was given a "skimpy" instruction on the lesser included offense, the 

court in that case did not hold the jury instruction was essential to conviction.  

See id. at 137, 142-43.  Instead it noted, "This power [to remand for entry of 

judgment of a lesser included offense] should be exercised only when it is 

clear that no undue prejudice will result to the accused."  Id. at 142.

       Since Austin, the District of Columbia Circuit has continued to focus 

on whether prejudice will result to the defendant rather than the technicality 

of whether a jury instruction was given below.           In Allison v. United States, 

the  court explained that before an appellate court may remand a criminal 

judgment for reduction to a lesser included offense,

       [i]t must be clear (1) that the evidence adduced at trial fails to 
       support one or more elements of the crime of which appellant 
       was convicted, (2) that such evidence sufficiently sustains all the 
       elements of another offense, (3) that the latter is a lesser 
       included offense of the former, and (4) that no undue prejudice 
       will result to the accused.

1A federal appellate court can vacate a conviction unsupported by the evidence and 
remand for entry of a judgment on a lesser included offense pursuant to 28 U.S.C. section 
2106, which contains language similar to Washington's RAP 12.2:

       The Supreme Court or any other court of appellate jurisdiction may affirm, 
       modify, vacate, set aside or reverse any judgment, decree, or order of a 
       court lawfully brought before it for review, and may remand the cause and 
       direct the entry of such appropriate judgment, decree, or order, or require 
       such further proceedings to be had as may be just under the circumstances.

28 U.S.C. § 2106.

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133 U.S. App. D.C. 159, 409 F.2d 445, 451 (1969).  Following Allison, the 

District of Columbia Circuit in Brisbane determined it had the authority to 

remand for the entry of judgment for a lesser included offense even where the 

jury had not been instructed on the lesser offense: "By convicting Brisbane of 

distributing 'cocaine base,' the jury necessarily concluded that the drugs 

involved were some form of cocaine.  The jury's conclusion would not have 

changed  even if the district court had given instructions directed                    at 

subsection (ii) instead of subsection (iii)."  United States v. Brisbane, 361 

U.S. App. D.C. 287, 367 F.3d 910, 915 (2004) (emphasis added).

       The framework articulated by Allison has persuaded other jurisdictions 

to focus on "the nature of the offenses involved and the prejudice to the 

defendant" rather than whether or not the jury was instructed on the lesser 

included offense.  United States v. Petersen, 622 F.3d 196, 206 (3d Cir. 

2010) (applying the Allison test); see also Shields v. State, 722 So. 2d 584,

587 (Miss. 1998) ("[we] adopt the test as set forth in Allison and hold that the 

lesser included offense need not be before the jury in order to apply the direct 

remand rule"); United States v. Hunt, 129 F.3d 739, 746 (5th Cir. 1997) ("the 

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lack of instruction on the lesser included offense was not unduly prejudicial to 

Hunt"); United States v. Smith, 13 F.3d 380, 383 (10th Cir. 1993) (applying 

Allison and suggesting prejudice could arise when the defendant's strategy 

would differ).  In Rutledge, the United States Supreme Court also cited the 

Allison formulation with approval.  517 U.S. at 305 n.15.  I would follow the 

Allison line of authority here and hold the presence or absence of a jury 

instruction is only one factor to consider in determining whether a defendant 

will be prejudiced by an appellate court's remand for judgment on a lesser 

included offense. 

       Here, the majority simply assumes prejudice will result if the jury is not 

instructed on the lesser included offense:

       [I]f jurors are not asked to decide the defendant's guilt or 
       innocence on a lesser included offense, the defendant is denied 
       the opportunity of defending against such a charge and might 
       forego strategies, arguments, and the presentation of elements 
       relative to that charge.

Majority at 6.  This is purely speculation.  First, RCW 10.61.003 and 

10.61.006 provide a defendant with notice that a defendant may be convicted 

at trial on the charged offense or any lesser included offense.  Second, it is 

frequently not the case that submitting a lesser included offense to the jury

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will change the defendant's trial  strategy.  See Allison, 409 F.2d at 451 (

"[W]e perceive no possible prejudice to appellant as a result of our 

disposition. . . . There is no indication that defense presentation would have 

been altered had the [greater offense] been dismissed at the close of the 

Government's case."); Smith, 13 F.3d at 383 ("Mr. Smith has not offered the 

slightest suggestion of how the defense might have differed.  Defense counsel 

already had a duty to explore all of Mr. Smith's valid defenses in this case.").  

Third, as discussed above, if the jury finds the defendant guilty of the greater 

charge, the jury does not even consider any lesser offenses.  If no prejudice 

results, appellate courts should be permitted to exercise their authority as set 

forth above.  The majority offers no reason to disallow the practice based 

solely on whether a jury instruction was given.

                                      Conclusion

       I would recognize what has long been our law.  An appellate court's 

authority to direct the entry of judgment for a lesser included offense does not 

depend on whether the jury was instructed on that offense, but on whether the 

jury necessarily found each element of the lesser included offense in reaching 

its verdict.  Whether a jury instruction was given is just one factor to consider 

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when determining whether the defendant would be unduly prejudiced by this 

remedy.  I concur in the result because in this case the jury did not necessarily 

find the specific intent required for a conviction of an attempt crime when it 

convicted Heidari of second degree child molestation.

       AUTHOR:

                Justice James M. Johnson

       WE CONCUR:

                Chief Justice Barbara A. 

                                                                Justice Debra L. Stephens

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