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State v. Jimerson - 27 Wash. App. 415, 618 P.2d 1027 (Wash. Ct. App. 1980)


It has been firmly established in Washington that an assault is an attempt, with unlawful force, to inflict bodily injury upon another, accompanied with apparent present ability to give effect to the attempt if not prevented. Simple assault as defined by the legislature in Wash. Rev. Code § 9A.36.040 concerns an assault which involves neither the intent nor the result denoted in the definition of assault in the first, second or third degree.


After a heated exchange with two off-duty police officers, defendant Raymond Arthur Jimerson, Jr., drove his automobile towards them. The car swerved toward the officers but missed them. Jimerson was arrested and was later charged with second-degree assault. At trial in Washington state court, Jimerson claimed that he only intended to splash the officers as he drove past them. Jimerson proposed that the trial court instruct the jury on simple assault. The trial court believed there was insufficient evidence for such an instruction and refused the requested instruction. Thereafter, the jury found Jimerson guilty, and the trial court entered a judgment on two counts of second-degree assault. Jimerson appealed.


Was Jimerson properly convicted of second-degree assault?




The appellate court reversed Jimerson's convictions for second-degree assault and remanded the case for new trial. The court held that the trial court should have given an instruction to the jury on simple assault. It explained that simple assault concerned an assault that involved neither the intent nor the result denoted in assault in the second degree. Evidence was produced that would justify a reasonable person in concluding that the lesser-included offense of simple assault was committed. If, as alleged by Jimerson, the car was to be used to put some non-deadly force into motion which amounted to an assault, such as the alleged intent to splash slush or water from a mud puddle onto the officers, then the car could have been used to commit a simple assault. The instruction on the lesser-included offense of simple assault should have been given and the failure to do so was prejudicial error.

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