State v. PorterState v. Porter
Arrick Porter was charged with selling cocaine to an undercover police officer. At trial, Porter denied selling cocaine to the officer and claimed instead that he had been attempting to buy cocaine from аnother person. At issue is whether, under the lesser included offense doctrine, a party is entitled to have the trial court instruct the jury on a lesser crime arising out of an act or transaction
FACTS
On July 27, 2000, Seattle Police Officer Laura Maccarrone was working undеrcover in a buy-bust drug operation in downtown Seattle. Approached by a man later identified as Kenneth Horner, Officer Maccarrone told him that she was looking to buy crack cocaine and had $30 to spend. Horner approached Portеr, talked with him briefly, and then directed Officer Maccarone to join them on a park bench. According to Officer Maccarrone, Horner told Porter, “She wants a 30, don‘t do her wrong,” and Porter responded, “I won‘t.” Verbatim Report of Proceedings (VRP) (Nov. 1, 2000) at 22. Officer Maccarrone then reached across Horner to give Porter the $30 in buy money, and Porter in return gave her two rocks of crack cocaine. Approximately 30 to 40 feet away, Officer Donald Johnson, “a foot observation officer” in the buy-bust operation, witnessed the “hand exchange.” Id. at 42, 44. Officer Maccarrone then stood up, gave the other officers her “prearranged good buy sign,” and walked south out of the park with Horner, leaving Porter behind. Id. at 24. Officer Johnson reported watching Pоrter walk north through the park, contact an unidentified person behind a tree, and then jog westbound before joining two other people on a bench and making a hand exchange with one of them.
Both Porter and Horner were arrested and searched. No drugs or drug paraphernalia were found, nor was any of the prerecorded buy money recovered. By information filed on July 31, 2000, the State alleged that Porter and Horner “did deliver Cocaine ... to Seattle Police Officer [Maccarrone],” in violаtion of
At trial, Porter claimed that he had gone to the park to buy cocaine, not sell it. He denied giving crack cocaine to Officer Maccarrone or taking any money from her. Rather, Porter testified that, after joining Horner and Officer Maccarrone on the park bench, he had asked Horner to “sell [him] a ten dollar piece for the seven dollars [he] had” but that Horner had declined, saying “all he had was 20.” VRP (Nov. 2, 2000) at 45. Consistent with his testimony that he had unsuccessfully tried to buy cocaine from Horner, Porter proposed a series of jury instructions on the uncharged crime of attempted possession of cocaine. He also proposеd an alternative verdict form, which allowed the jury, upon finding him not guilty of the crime of delivery of cocaine, to find him guilty of the crime of attempted possession of cocaine. Concluding that Porter‘s attempted possession of cocaine was not a lesser included offense of the crime charged, King County Superior Court Judge Douglass A. North rejected the proposed instructions and verdict form.
The jury found Porter guilty of one count of delivery of a controlled substance, in violation of
ISSUE
Was Porter entitled to have the jury instructed on the lesser included offense of attempted possession of cocaine?
ANALYSIS
Standard of Review. The resolution of Porter‘s case hinges on the purely legal question of whether the lesser included offense doctrine entitles a party to a jury instruction on a lesser crime arising out of a physical act or transaction different from the one giving rise to the charged crime. Legal questions, including alleged errors of law in a trial court‘s jury instructions, are reviewed de novo. Hue v. Farmboy Spray Co., 127 Wash.2d 67, 92, 896 P.2d 682 (1995); State v. Tamalini, 134 Wash.2d 725, 729, 953 P.2d 450 (1998).
Lesser Included Offenses: Threshold Requirement. In State v. Fernandez-Medina, 141 Wash.2d 448, 6 P.3d 1150 (2000), we recalled the “`ancient doctrine’ that a criminal defendant may be held to answer for only those offenses contained in the indictment or information.” Id. at 453, 6 P.3d 1150 (quoting Schmuck v. United States, 489 U.S. 705, 717-18, 109 S.Ct. 1443, 103 L.Ed.2d 734 (1989)). As we also observed, “[c]onsistent with that notion,
We have long applied the two-pronged Workman test to determine whether a lesser offense is included within the charged offense: “First, each of the elements of the lesser offense must be a necessary element of the offense charged. Second, the evidence in the case must support an inference that the lesser crime was committed.” State v. Workman, 90 Wash.2d 443, 447-48, 584 P.2d 382 (1978) (citations omitted) (emphasis added). As to the first requirement (the legal prong), we have explained that, “`if it is possible to commit thе greater offense without having committed the lesser offense, the latter is not an included crime.‘” State v. Frazier, 99 Wash.2d 180, 191, 661 P.2d 126 (1983) (quoting State v. Roybal, 82 Wash.2d 577, 583, 512 P.2d 718 (1973) (emphasis added)). Put another way, under “the statutory approach,” the elements of the lesser offense must be “necessarily” and “invariably” included among the еlements of the greater charged offense. State v. Harris, 121 Wash.2d 317, 321-23, 325-26, 849 P.2d 1216 (1993) (holding that assault is not a lesser included offense of attempted murder because the elements of assault are not invariably included in attempted murder, given that murder may be attempted by taking a substantial step such as lying in wait); State v. Aumick, 126 Wash.2d 422, 428, 894 P.2d 1325 (1995) (recognizing that defendant “actually touched” victim but holding that legal prong was not satisfied because greater offense of attempted first degree rape could have been committed without the touching that supported the lesser offense of fourth degree assault); see also State v. Jackson, 112 Wash.2d 867, 878, 774 P.2d 1211 (1989) (holding that “[m]alicious mischief is not a lesser included offense of attempted burglary because one does not invariably cause physical damage while attempting a burglary“).
To satisfy the second Workman requirement (the factual prong), there must be “a factual showing more particularized than [the sufficient evidence already] required for other jury instructions“: “Specifically, we have held that the evidence must raise an inference that only the lesser included ... offense was committed to the exclusion of the charged offense.” Fernandez-Medina, 141 Wash.2d at 455, 6 P.3d 1150 (citing, inter alia, State v. Bowerman, 115 Wash.2d 794, 805, 802 P.2d 116 (1990)). In other words, “the evidence must affirmatively establish the defendant‘s theory of the case — it is not enough that the jury might disbelieve the evidence pointing to guilt.” Id. at 456, 6 P.3d 1150 (citing State v. Fowler, 114 Wash.2d 59, 67, 785 P.2d 808 (1990), overruled on other grounds by State v. Blair, 117 Wash.2d 479, 816 P.2d 718 (1991)).
Where the Workman test has been applied, the lesser, allegedly included offense has consistеntly been based on the same criminal act or transaction supporting the
That the lesser offense must arise from the same act or transaction supporting the greater charged offense is such an obvious precondition for applying the Workman test that we have not, until now, been called uрon to state explicitly this threshold requirement. Similarly, only rarely have courts in other jurisdictions found it necessary to emphasize that the lesser included offense analysis is predicated on the greater and lesser offenses arising from the same criminal act or transaction. See United States v. Martinez-Torres, 556 F.Supp. 1255, 1270 n. 10 (S.D.N.Y.1983) (stating that “[t]wo offenses do not stand in the relationship of lesser and greater offenses where they arise from different criminal transactions” but “[i]nstead, ... are simply two separate offenses which can be the subject of two different prоsecutions, convictions, and sentences“); People v. Landwer, 166 Ill.2d 475, 655 N.E.2d 848, 856, 211 Ill.Dec. 465 (1995) (disagreeing with contention that “a defendant is entitled to raise as a defense to one charged transaction that he or she committed some separate uncharged transaction, occurring on different days and involving different participants“).
Despite the absence of an explicit statement of this threshold requirement in our prior case law on lesser included offenses, the State specifically argued to the trial court and on appeal that Porter was not entitled to his proposed lesser included offense instructions since his admitted lesser offense of attempted possession described a criminal transaction different from the one charged in the information. Opposing Porter‘s proposed instructions, the State asserted that Porter‘s “efforts to buy drugs from other people at the scene [were] not related to the delivery that the State [was] alleging.” VRP (Nov. 2, 2000) at 57. In its brief to the Court of Appeals, the State recognized the requirement that, for jury instructions on a defendant‘s admitted lesser crime to be justified, “the admitted crime must derive from the actions of the charged crime,” and the State went on to note that, while Porter had admitted attempting to buy cocaine from Horner, he had “deniеd any exchange with Officer Maccarrone.” Br. of Resp‘t at 6-7. And finally, in its answer to Porter‘s petition for review, the State observed that, while Porter‘s testimony “about an independent, unrelated crime that he allegedly tried to commit... was interesting,” it was also “irrelеvant.” Answer to Pet. for Review at 5.
The State‘s assessment of the defect in Porter‘s proposed instructions was correct. Porter‘s proposed jury instructions on the lesser offense of attempted possession of cocaine do not satisfy the precondition that the lesser crime be based on the same criminal
CONCLUSION
The trial court properly rejected Porter‘s jury instructions. The lesser included offense of аttempted possession of cocaine was not based on the same criminal act or transaction giving rise to the charged crime of delivery of cocaine. Because Porter was charged with delivering cocaine to Officer Macсarrone, he was not entitled to have the jury instructed on his alternative criminal conduct of attempting to buy cocaine from Horner. The Court of Appeals is therefore affirmed.
ALEXANDER, C.J. and JOHNSON, MADSEN, SANDERS, IRELAND, BRIDGE, CHAMBERS, and FAIRHURST, JJ., concur.