State v. Marshall

495 N.W.2d 87, 1993 S.D. LEXIS 6, 1993 WL 5509

• Court: South Dakota Supreme Court
• Decided: January 13, 1993
• Docket: 17715
• Status: Published

Opinions

SABERS, Justice.

Lawrence Marshall appeals his judgment of conviction for aggravated assault. We affirm.

FACTS

A grand jury indicted Lawrence for aggravated assault as a result of an incident with his wife, Elizabeth. Elizabeth, a reluctant witness, testified that Lawrence struck her three times with a piece of pipe. She testified the first blow landed on her nose and opened a wound about two inches long. A photo of the wound was admitted into evidence. She testified the second blow hit her in the back of the head and then she testified there was no third blow.

On cross-examination Elizabeth admitted that she had consumed five beers and part of a bottle of wine on the day of the incident. However, she denied she was drunk on the morning in question. Lawrence’s attorney asked her whether she had ever fallen and hit her face. She admitted that once “a long, long time ago” she had fallen on her face.

Lawrence testified that he also had been drinking on the morning of the alleged assault. He testified that Elizabeth grabbed and scratched him during an argument. He shoved her and she fell back over a chair and hit the floor. Lawrence admitted that he told a police officer that he backhanded Elizabeth, but he denied hitting her with a pipe. Lawrénce testified that on one occasion Elizabeth had fallen down while drunk and skinned her nose.

On cross-examination, Lawrence admitted that since 1988 he had been arrested 11 times for assaulting Elizabeth. He also acknowledged that he was claiming that Elizabeth cut her nose during the fall.

Lawrence asked the trial court to give instructions to the jury on two lesser included offenses: (1) intentionally causing bodily injury not resulting in serious injury, and (2) causing bodily injury in a reckless manner. The trial court refused to give the proposed jury instructions because it concluded that the proposed offenses did not share elements with aggravated assault and thus were not lesser included offenses.¹

The jury found Lawrence guilty of aggravated assault. The trial court sentenced Lawrence to 15 years in the penitentiary. Lawrence appeals and argues that the trial court erred by not giving the lesser included offense instruction.

DECISION

To decide whether a trial court should submit a lesser included offense instruction to the jury two tests must be satisfied — a legal test and a factual test. State v. Tapio, 459 N.W.2d 406, 408 (S.D.1990) citing State v. Gillespie, 445 N.W.2d 661 (S.D.1989); State v. Scholten, 445 N.W.2d 30 (S.D.1989). The legal test for lesser included offenses requires:

(1) all of the elements of the included offense are lesser in number than the elements of the greater offense;

(2) the penalty for the included lesser offense must be less than that of the greater offense; and

(3)both offenses must contain common elements so that the greater offense cannot be committed without also committing the lesser offense.

State v. Wall, 481 N.W.2d 259, 264 (S.D.1992).

Lawrence was charged with aggravated assault under SDCL 22-18-1.1(2), which provides:

Any person who:

* Jfc * * * *

(2) Attempts to cause, or knowingly causes, bodily injury to another with a dangerous weapon;

* * * * * ⅜

is guilty of aggravated assault. Aggravated assault is a Class 3 felony.

SDCL 22-18-1 defines simple assault as follows:

Any person who:

* * * * * *

(5) Intentionally causes bodily injury to another which does hot result in serious bodily injury;

is guilty of simple assault. Simple assault is a Class 1 misdemeanor.

State and Lawrence agree that the first two factors of the “legal test” were satisfied in this ease. Thus, only the third prong of the legal test is at issue here. We must decide whether aggravated assault under SDCL 22-18-1.1(2) contains common elements so that it cannot be completed without also committing simple assault under SDCL 22-18-1(5).

Aggravated assault under SDCL 22-18-1.1(2) (dangerous weapon assault) can be committed without committing simple assault under SDCL 22-18-1(5) (intentional bodily injury). This is so because simple assault under SDCL 22-18-1(5) requires that the bodily injury was “intentionally” caused, while aggravated assault under SDCL 22-18-1.1(2) only requires that the bodily injury was “knowingly” caused. Since the legislature used different words within the same chapter, it obviously intended different meanings. See Border States Paving v. Dept. of Revenue, 437 N.W.2d 872 (S.D.1989) (statutes must be construed according to their intent as determined from the statute as a whole and enactments relating to the same subject). See also SDCL 2-14-11 (court may consider the arrangement or position of statutes if it tends to show the intended purpose or effect thereof). Although we recognize that these words are frequently used interchangeably, in this context, we conclude that “intentionally” means intended, whereas “knowingly” includes acts or instances where the result is likely to occur even though not intended.²

These statutes do not contain common elements and one may commit aggravated assault under SDCL 22-18-1.1(2) without committing simple assault under SDCL 22-18-1(5). Therefore, the trial court’s refusal to give the “simple assault” instruction was not error.

Having concluded that the legal test has not been satisfied, it is not necessary to address the factual test and we affirm.

MILLER, C.J., and WUEST and AMUNDSON, JJ., concur. HENDERSON, J., dissents.

1 . Although Lawrence sought jury instructions on two lesser offenses, he has only challenged the trial court’s decision not to give a jury instruction on number (1) above (intentional bodily injury under SDCL 22-18-1(5)).

2 . Black’s Law Dictionary defines "general intent” as follows:

In criminal law, the intent to do that which the law prohibits. It is not necessary for the prosecution to prove that the defendant intended the precise harm or precise result which eventuated.

Black’s Law Dictionary 727 (5th ed. 1979). See also, State v. Pass, 298 N.W.2d 80 (S.D.1980) and State v. Balint, 426 N.W.2d 316 (S.D.1988).

The term "knowingly” does not ordinarily require that the actor intended to break the law; it is enough that he intended to act. State v. Eakes, 87 S.D. 247, 206 N.W.2d 272 vacated on other grounds, 414 U.S. 1017, 94 S.Ct. 440, 38 L.Ed.2d 310 (1973).