Assault is “Lesser Included” Charge for Indecent Liberties.

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In State v. Bluford, the  WA Court of Appeals Div. I decided that Assault in the Fourth Degree satisfies the legal prong of the lesser included offense test for the crime of Indecent Liberties. Charles Bluford appealed his conviction for Indecent Liberties on arguments that the trial court failed to instruct the jury on the lesser charge of assault.

For those who don’t know, a “lesser-included” offense shares some, but not all, of the elements of a greater criminal offense. Therefore, the greater offense cannot be committed without also committing the lesser offense. For example, Manslaughter is a lesser included offense of murder, assault is a lesser included offense of rape, and unlawful entry is a lesser included offense of Burglary.

Here, the Court reasoned that instructing juries on lesser included offenses “is crucial to the integrity of our criminal justice system,” and that  courts should therefore “err on the side of instructing juries on lesser included offenses.” Furthermore, the Court of Appeals reasoned that courts should instruct the jury about a lesser included offense if the jury could find that the defendant committed only the lesser included offense.

The Court analyzed whether a defendant is entitled to a lesser included offense instruction under the test announced in State v. Workman. Under this test, the defendant is entitled to a lesser included jury instruction when (1) each of the elements of the lesser offense is a necessary element of the charged offense and (2) the evidence in the case supports an inference that the lesser crime was committed.

The court applied the Workman test and decided Bluford should have been granted a lesser included instruction for assault fourth degree. Here, the State charged Bluford with one count of Indecent Liberties. This requires that a person “knowingly cause another person who is not his or her spouse to have sexual contact with him or her or another.. . by forcible compulsion.” Accordingly, this crime requires knowledge as the mental state. Therefore, Workman’s factual prong was satisfied.

The common-law definition of assault that applies is an “unlawful touching with criminal intent.” Thus, reasoned the court, fourth-degree assault requires intent as the mental state.  Indecent liberties also requires “sexual contact.” Thus, the State must prove that the defendant acted with a sexual purpose. Accordingly, fourth-degree assault does not require a higher mental state than indecent liberties. Therefore, reasoned the Court, the Workman test’s legal prong is met here, as well.

Consequently, Bluford was entitled to a lesser included offense instruction on fourth-degree assault.

The court reversed his conviction.

My opinion? Good decision. Sometimes, Prosecutors “overcharge” the seriousness of criminal acts. For example, some offenses charged as Assault in the Second Degree should really be charged as Assault in the Fourth Degree. Consequently, it’s imperative for competent defense attorneys to try convincing judges to give more options to juries than “guilty” or “innocent” on overcharged offenses.

That’s why the “lesser included instruction” tactic is a valuable trial tool to seek reductions, especially for sex offenses, which are some of the most damaging criminal charges one could possibly face. A sexual assault or sex crime carries serious penalties, including loss of freedom, sexual deviancy treatment, lengthy registration requirements and negative public stigma. Sexual assault convictions also limit future job opportunities and possibly prevent people from seeing their families. The effects are devastating. For more information on sex offense defense, please read my practice area labelled Sex Offenses.