In Re the Personal Restraint of Heidari, 274 P.3d 366

Heidari was convicted by a jury in King County Superior Court of first degree child rape, second degree child molestation, and third degree child molestation.
The Court of Appeals affirmed, but declined to direct entry of a judgment on the lesser included offense of attempted second degree child molestation.
The State sought discretionary review, which this court granted.
Evidence showed no sexual contact; the victim testified to attempted acts but not touching, and the State conceded no sexual contact occurred.
The State urged remand to enter a lesser included offense despite the jury not being instructed on it; the Court of Appeals refused.

Issue	Plaintiff's Argument	Defendant's Argument	Held
May an appellate court direct entry of a lesser included offense?	Heidari (State) argues Green allows remand for lesser offense when evidence supports it.	Heidari contends the Court of Appeals correctly refused because no instruction on the lesser offense was given.	No; Green governs, and the Court of Appeals correctly declined.
Does Green continue to control remand where the jury was not instructed on the lesser offense?	State asserts Green permits remand regardless of instruction if elements are necessarily found.	Heidari argues Green should apply only when the jury was instructed on the lesser offense.	Green remains controlling; remand not permitted here.
Can an appellate court direct entry of judgment for a lesser offense when the lesser offense requires intent but the greater offense was not shown with that element?	State contends intent elements may be inferred from the verdict for the lesser offense.	Heidari argues intentional proof cannot be inferred to satisfy attempted offenses where evidence lacks the element.	No; the state cannot direct entry of the attempted offense here.

State v. Green, 94 Wash.2d 216 (1980) (remand for lesser included offenses only with explicit instruction; elements must be shown)
State v. Gamble, 118 Wash.App. 332 (2003) (remand for lesser offense after vacating greater offense; treatment varies by case)
State v. Gilbert, 68 Wash.App. 379 (1993) (criticized Green dicta; nonetheless not binding to overrreule Green here)
State v. Brown, 50 Wash.App. 873 (1988) (early application of lesser included offense remand context)
In re Pers. Restraint of Andress, 147 Wash.2d 602 (2002) (remand considerations in restraining petitions unrelated to lesser offense instruction)
State v. Stevens, 158 Wash.2d 304 (2006) (intent element discussion in second degree child molestation)
Rutledge v. United States, 517 U.S. 292 (1996) (recognizes appellate authority to direct lesser included offense judgments)
Allison v. United States, 409 F.2d 445 (1969) ( Allison test for remand to lesser included offense focusing on prejudice)
United States v. Brisbane, 367 F.3d 910 (2004) (DC Circuit remand authority without explicit instruction emphasis on prejudice)