State v. Coryell

FILE THIS OPINION WAS FILED
FOR RECORD AT 8 A.M. ON
IN CLERK’S OFFICE MARCH 25, 2021
SUPREME COURT, STATE OF WASHINGTON
MARCH 25, 2021
SUSAN L. CARLSON
SUPREME COURT CLERK

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, )
) No. 98256-2
Respondent, )
)
v. ) En Banc
)
TANNER LEE CORYELL, )
)
Petitioner. ) Filed: March 25, 2021
_______________________________________ )

MADSEN, J.—This case concerns the test to be applied when determining

whether to instruct the jury on a lesser included or lesser degree offense. Under State v.

Workman, 90 Wn.2d 443, 447-48, 584 P.2d 382 (1978), a defendant is entitled to a lesser

included offense instruction if (1) each of the elements of the lesser offense is a necessary

element of the offense charged (legal prong) and (2) evidence in the case supports an

inference that the lesser crime was committed (factual prong). Although this court has

continued to follow the Workman test, confusion has arisen after some of our opinions

have expressed Workman’s factual prong as requiring evidence “that only the lesser
No. 98256-2

included/inferior degree offense was committed to the exclusion of the [greater] charged

offense.” See, e.g., State v. Fernandez-Medina, 141 Wn.2d 448, 455, 6 P.3d 1150 (2000).

Tanner Lee Coryell argues the “exclusion” requirement in Fernandez-Medina

misconstrues Workman—that it is incorrect and harmful and should be overturned. We

disagree with Coryell’s premise: properly understood, Fernandez-Medina’s “to the

exclusion of the charged offense” language does not alter the Workman test. A defendant

is still entitled to a lesser included offense instruction when a jury could reasonably find,

based on evidence submitted and the jury’s decision about whether it is credible or not,

that the defendant committed only the lesser offense. This is such a case. Accordingly,

we vacate Coryell’s conviction and remand the case for further proceedings consistent

with this opinion.

FACTS

Coryell and Autumn Hart’Lnenicka lived together. One morning, the couple

argued. Hart’Lnenicka accused Coryell of cheating on her with an ex-girlfriend. While

they were talking, Coryell was playing a video game, and Hart’Lnenicka unplugged the

game console, threatening to break it. Coryell took the console from Hart’Lnenicka and

set it on the coffee table. At some point, Coryell pushed Hart’Lnenicka to the ground.

Eventually, Officer Shon Malone responded to a 911 call at the apartment and arrested

Coryell.

Coryell and Hart’Lnenicka agree on the preceding events. They dispute the events

that occurred after Coryell pushed Hart’Lnenicka to the ground.

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No. 98256-2

Coryell’s Testimony: According to Coryell’s testimony at trial, during this

interaction, he continuously asked Hart’Lnenicka what was going on. Coryell said

Hart’Lnenicka hit his face, which caused his glasses to fly off past the coffee table. After

retrieving the glasses, Coryell said Hart’Lnenicka grabbed the television and

entertainment center and threatened to break it. Coryell then took the television and

pushed the entertainment center back onto the wall. In response, Hart’Lnenicka took

Coryell’s glasses and twisted them until the lenses popped out. She threw the frames

behind him and one of the lenses across the room. Coryell picked up the lens at his feet

and put it on the breakfast table, intending to fix his glasses. As he did so, Hart’Lnenicka

started to hit and scratch his face. Coryell pushed her off, causing her heel to hit the side

of the wall; Hart’Lnenicka fell, scraping her back on the front door handle, and hit the

floor.

Although Coryell did not admit to putting his hands around Hart’Lnenicka’s neck

at any point during their interactions, he admitted that he pinned her against the wall

because she was scratching his face. But he testified that he did not strangle her.

At some point, Coryell sat at the breakfast table to fix his glasses. It was then that

Hart’Lnenicka ran to the bedroom, grabbed her phone and car keys, and ran out the front

door. Coryell testified that that was the last time he saw her that day.

Hart’Lnenicka’s Testimony: Hart’Lnenicka testified that after Coryell pushed her

to the ground, he put his hands around her neck, but she testified that she could still talk

and breathe and did not feel as if she was going to pass out. Then, Coryell took hold of

3
No. 98256-2

her ankles and dragged her from the apartment through the front door, tearing her pants in

the process. As a result, Hart’Lnenicka sustained a concrete burn on her back.

While Hart’Lnenicka was outside of the apartment, Coryell locked the front door.

She then knocked on the door, which Coryell opened. Hart’Lnenicka ran to the laundry

room; Coryell followed her, pushed her down for a second time, and choked her.

Hart’Lnenicka testified that she could breathe, though it was difficult. In their struggle,

Hart’Lnenicka grabbed and cut Coryell’s arm, which prompted him to pick her up by her

neck and slam her head five times against the laundry room doors. Hart’Lnenicka could

not breathe. And, Coryell threatened that he was “‘not afraid to kill [her].’” 1 Verbatim

Report of Proceedings (VRP) (Jun. 25, 2018) at 48, 50. Hart’Lnenicka grabbed Coryell’s

glasses and threw them, scratching him in the process. This caused Coryell to let go of

her throat.

As Hart’Lnenicka tried to crawl toward the kitchen, Coryell kicked her across the

floor and berated her. To escape, Hart’Lnenicka ran to the bedroom and locked the door.

Coryell unlocked the bedroom door and threw Hart’Lnenicka’s possessions into bags.

Hart’Lnenicka, grabbed her keys and phone, ran out the front door, and called 911.

Police Testimony: Officer Malone also testified at trial. As he discussed his

domestic violence dispute experience, Officer Malone noted he had responded to over

1,600 domestic violence calls, 20 of which involved strangulation. Officer Malone’s

training and experience involved looking for signs or symptoms of strangulation.

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No. 98256-2

“Depending on the level [of force],” Officer Malone testified, he would look for

“welts, possibly bruising around the throat and neck area” and petechial hemorrhaging

(broken blood vessels around the eyes or mouth, or in other areas of the skin). Id. at 107.

Officer Malone indicated not all cases of strangulation present the same physical

symptoms on a person. Id. However, he acknowledged that the existence of these types

of injuries can indicate oxygen deprivation and are important to identify if present.

Officer Malone also stated that he saw no petechial hemorrhaging in the

photographs presented at trial and that he observed no signs of it on Hart’Lnenicka on the

day of the alleged assault.

Officer Malone further testified that Hart’Lnenicka told him that Coryell had

kicked her out of the apartment, choked her, thrown her to the ground, and slammed her

head into the laundry room doors. Officer Malone described Hart’Lnenicka’s physical

appearance: her upper chest appeared to be red, an approximately two-inch vertical

abrasion ran down the left side of her neck, and both sides of her neck showed signs of

welts—possibly caused by fingers gripping her neck.

Officer Malone and his partner spoke with Coryell, who confirmed he had been

dating Hart’Lnenicka, they shared an apartment together, and they had argued because

Hart’Lnenicka accused him of cheating on her. Coryell added that in the course of their

interaction, Hart’Lnenicka grabbed his game console and threatened to break it; in

response, he grabbed it from her and pushed her to the ground.

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No. 98256-2

Coryell also told Officer Malone that Hart’Lnenicka scratched his face and broke

his glasses. Officer Malone noted scratches on Coryell’s face, one on his nose and one

on his forehead; a scratch on his right arm, on the back of his tricep; and a scratch on his

right hand. Officer Malone testified that he twice asked Coryell if he had put his hands

around Hart’Lnenicka’s neck. “The first time we spoke, I had mentioned did you ever

put your hands around her neck, and [Coryell] said, [‘W]ell if I did, I don’t remember.[’]

The second time that he had told me, he completely denied ever grabbing her . . . around

the neck.” Id. at 117-18. Officer Malone then arrested Coryell for second degree assault.

During the arrest, Coryell responded that it was not fair that he was being arrested

when Hart’Lnenicka hit him first. Officer Malone advised Coryell that Coryell could

give a more detailed statement once he was booked at the Thurston County jail. During

their second conversation, Coryell confirmed the sequence of events but denied ever

grabbing Hart’Lnenicka around the neck.

Coryell was charged with two counts of assault. The first count was second

degree assault by means of strangulation and the second count was fourth degree assault.

Coryell requested a lesser included offense instruction for fourth degree assault for count

one. In support of his request, Coryell argued that any force he used was in self-defense

and defense of his property or that his actions did not prevent Hart’Lnenicka from

breathing.

The trial court declined to give the requested fourth degree assault instruction.

Relying on Workman and State v. Porter, 150 Wn.2d 732, 82 P.3d 234 (2004), the court

6
No. 98256-2

stated the standard for such instructions, “‘The evidence must raise an inference that only

the lesser included offense was committed to the exclusion of the charged offense.’” 2

VRP (Jun. 26, 2018) at 208-09. The court reasoned that the testimony showed either

Hart’Lnenicka was strangled or was not, and that there was no testimony from Coryell

that he put his hands around her neck but did not strangle her. The court concluded that

as defined by law, a fourth degree lesser offense instruction was improper.

The jury convicted Coryell on both counts. Coryell appealed his conviction. In an

unpublished opinion, the Court of Appeals affirmed the trial court’s decision denying a

lesser degree instruction. State v. Coryell, No. 52369-8-II, slip op. at 6-9 (Wash. Ct.

App. Mar. 3, 2020) (unpublished), http://www.courts.wa.gov/opinions/pdf/D2%2052369-

8-II%20Unpublished%20Opinion.pdf. We granted Coryell’s petition for review. 1 State

v. Coryell, 195 Wn.2d 1030 (2020).

Amicus Washington Association of Criminal Defense Lawyers (WACDL)

submitted briefing in support of Coryell.

ANALYSIS

At issue in this case is whether the language “to the exclusion of the charged

offense” is a deviation from Workman’s factual prong. The standard of review applied to

jury instructions depends on the trial court’s decision under review. State v. Condon, 182

Wn.2d 307, 315-16, 343 P.3d 357 (2015). “If the decision was based on a factual

1
Coryell also argued his conviction violated double jeopardy principles. He asserted that only
one continuous assault occurred. The Court of Appeals found no double jeopardy violation,
affirming the conviction on this ground as well. Coryell, slip op. at 10-12. Coryell does not
raise double jeopardy here.
7
No. 98256-2

determination, it is reviewed for abuse of discretion.” Id. “If it was based on a legal

conclusion, it is reviewed de novo.” Id. at 316.

In this case, the trial court’s decision regarding the lesser offense instruction had

both factual and legal components. The trial court concluded as a matter of law that

Coryell was not entitled to the lesser included instruction on the second degree assault

unless there was evidence that Coryell committed only the lesser crime to the exclusion

of the greater. That decision is reviewed de novo. The trial court concluded as a matter

of fact that the evidence did not support an inference that Coryell committed only fourth

degree assault. That decision is reviewed for abuse of discretion.

Both parties agree that Workman provides the correct test. However, Coryell

argues that our cases recognize two inconsistent versions of Workman: the “inference”

standard originally established in Workman, 90 Wn.2d at 448 (“the evidence in the case

must support an inference that the lesser crime was committed”), and the “exclusion”

standard first articulated in Fernandez-Medina, 141 Wn.2d at 455 (“the evidence must

raise an inference that only the lesser included/inferior degree offense was committed to

the exclusion of the charged offense”). We are asked to resolve this tension.

Coryell asserts that the “exclusion” standard misinterprets Workman’s inference

requirement. 2 Further, he argues the cases requiring evidence showing the commission

of the lesser offense to the exclusion of the charged offense are not based on any prior

2
Although Coryell cites Porter for “to the exclusion of the charged offense” language,
Fernandez-Medina first used this language. We will therefore refer to Fernandez-Medina as the
source of the exclusionary standard.

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No. 98256-2

case law and constitute dicta. Coryell also contends that the exclusion standard is

incorrect and harmful, and should be reversed. 3

Read in isolation, we might agree that the language in Fernandez-Medina departs

from Workman. But in context, it is an attempt to state more clearly a principle that is

simple in the abstract and often complicated in the specific: a defendant is entitled to a

lesser included instruction based on the evidence actually admitted. A defendant is not

entitled to a lesser included instruction merely because a jury could ignore some of the

evidence. The factual prong of Workman is satisfied only if based on some evidence

admitted, the jury could reject the greater charge and return a guilty verdict on the lesser.

A. Lesser Offenses

RCW 10.61.003 provides that where an offense consists of different degrees, “the

jury may find the defendant not guilty of the degree charged in the indictment or

information, and guilty of any degree inferior thereto.” Additionally, a defendant “may

be found guilty of [a lesser included offense], the commission of which is necessarily

included within that with which he or she is charged in the indictment or information.”

RCW 10.61.006.

Since publishing Workman in 1978, this court has largely employed the factual

prong as articulated in that decision—that is, considering whether the evidence positively

implied that the lesser crime was committed. See, e.g., State v. Smith, 115 Wn.2d 434,

442, 798 P.2d 1146 (1990) (affirming a theft conviction because the defendant did not

3
Coryell urges this court to reverse the “exclusion” standard, but not to reverse any decision
employing it.
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No. 98256-2

produce evidence to support a lesser included offense instruction); State v. Speece, 115

Wn.2d 360, 363, 798 P.2d 294 (1990) (affirming a burglary conviction because there was

no affirmative evidence in the record to support a lesser included instruction); see State v.

Brown, 127 Wn.2d 749, 756-57, 903 P.2d 459 (1995) (reversing a rape conviction

because the trial court erred in giving the lesser included instruction). In State v. Fowler,

this court explained,

It is not enough that the jury might simply disbelieve the State’s evidence.
Instead, some evidence must be presented which affirmatively establishes
the defendant’s theory on the lesser included offense before an instruction
will be given.

114 Wn.2d 59, 67, 785 P.2d 808 (1990), overruled on other grounds by State v. Blair,

117 Wn.2d 479, 816 P.2d 718 (1991). The type of evidence that “must be presented

which affirmatively establishes the defendant’s theory on the lesser included offense” is

not limited to evidence elicited on direct examination; in particular cases, it might include

evidence elicited on cross-examination, such as impeachment evidence, evidence of bias,

or inability to recall.

Although Workman has been acknowledged as the correct test, this court has, on

occasion, described that test in different language, which has caused some confusion. In

Fernandez-Medina, for example, we examined Workman’s factual prong. 141 Wn.2d at

455. In that case, the trial court declined to give a jury instruction on second degree

assault as an inferior degree offense to the first degree assault charges. Id. at 452. On

appeal, the defendant claimed the trial court prevented him from presenting to the jury his

theory of the case: that he committed only the inferior degree offense of second degree

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No. 98256-2

assault. Id. at 452-53. The State responded that the instruction was not warranted

because Fernandez-Medina had argued an alibi defense and, thus, the evidence presented

was insufficient to support the proposed instruction. Id.

We reversed the trial court’s ruling denying the requested instruction. Id. at 450.

We noted that while Fernandez-Medina had requested an inferior degree offense

instruction, this court used the lesser included test from Workman, explaining that the test

for an instruction on an inferior degree offense and a lesser included offense “differs . . .

only with respect to the legal component of the test.” 141 Wn.2d at 455. Fernandez-

Medina explained that Workman’s factual prong

include[d] a requirement that there be a factual showing more particularized
than that required for other jury instructions. Specifically, we have held
that the evidence must raise an inference that only the lesser
included/inferior degree offense was committed to the exclusion of the
charged offense.

Id. at 455 (citing State v. Bowerman, 115 Wn.2d 794, 805, 802 P.2d 116 (1990); State v.

Peterson, 133 Wn.2d 885, 891, 948 P.2d 381 (1997)).

Under that standard, the Fernandez-Medina majority concluded a lesser included

instruction was warranted. 141 Wn.2d at 450. Although the defendant had claimed alibi,

he also argued there was testimony that the clicking sound the victim heard was not

caused by the pulling of a trigger but was a result of other sounds made by the gun. Id. at

451. This court reasoned that the jury could believe that the defendant was present and

possessed a gun, but did not pull the trigger of his gun, creating a reasonable doubt as to

whether he intended to cause serious bodily injury as required for first degree assault. Id.

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No. 98256-2

at 461. Because the evidence raised an inference that the defendant had committed only

second degree assault rather than the charged offense of first degree assault, the court

held the trial court erred in denying a lesser degree instruction. Id. at 462.

Fernandez-Medina relied on Bowerman and Peterson to articulate Workman’s

requirement that only the lesser offense had been committed to the exclusion of the

greater. Id. at 455. Neither Bowerman nor Peterson used the language “to the exclusion

of the charged offense.”

In Peterson, the defendant was charged with first degree assault and attempted

second degree murder. 133 Wn.2d at 886. After a bench trial, the court entered a finding

of guilty to second degree assault. Id. at 888. Over the defendant’s objection, the trial

court permitted the State to amend the charge to second degree assault. Id. On appeal,

the defendant argued that second degree assault is not a lesser included offense of first

degree assault. Id. In a split decision, the Court of Appeals agreed that the form of

second degree assault in that case, torture, was not a lesser included offense of first

degree assault and that the posttrial amendment was not permitted under State v. Pelkey,

109 Wn.2d 484, 491, 745 P.2d 854 (1987) (a midtrial amendment of an information is

reversible error even without a showing of prejudice).

The Peterson court reversed, reasoning that an amendment to an inferior degree

charge is an exception to the Pelkey rule because where the lesser degree crime and the

charged crime are not separate and distinct from one another, the defendant has sufficient

notice to satisfy article I, section 22. 133 Wn.2d at 892-93. We explained that a crime is

12
No. 98256-2

an inferior degree of another when “(1) the statutes for both the charged offense and the

proposed inferior degree offense ‘proscribe but one offense’; (2) the information charges

an offense that is divided into degrees, and the proposed offense is an inferior degree of

the charged offense; and (3) there is evidence that the defendant committed only the

inferior offense.” Id. at 891 (quoting State v. Foster, 91 Wn.2d 466, 472, 589 P.2d 789

(1979)). We concluded that first degree and second degree assault proscribe only one

offense.

Similarly, Bowerman did not use the exclusion language. Instead, Bowerman

considered whether “the facts support[ed] an inference that only second degree murder

was committed.” 115 Wn.2d at 805. Bowerman aligns with Workman.

Recently, this court cited Fernandez-Medina when describing the Workman test.

In State v. Henderson, we described Fernandez-Medina as follows: “[a] jury must be

allowed to consider a lesser included offense if the evidence, when viewed in the light

most favorable to the defendant, raises an inference that the defendant committed the

lesser crime instead of the greater crime. If a jury could rationally find a defendant guilty

of the lesser offense and not the greater offense, the jury must be instructed on the lesser

offense.” 182 Wn.2d 734, 736, 344 P.3d 1207 (2015) (citation omitted). In applying that

test, we affirmed the Court of Appeals, which held the trial court erred in refusing a lesser

included offense instruction. Id. at 737.

The dissenting opinion in Henderson quoted the exclusion language from

Fernandez-Medina and criticized the majority as follows:

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No. 98256-2

I infer some discomfort with that standard in the majority’s opinion. I share
that discomfort; indeed, it arguably stands in tension with the statutory
directive that “[w]hen a crime has been proven against a person, and there
exists a reasonable doubt as to which of two or more degrees he or she is
guilty, he or she shall be convicted only of the lowest degree.” RCW
9A.04.100(2) (emphasis added). But the parties in this case have not
argued that issue.

Id. at 749 n.6 (Gordon McCloud, J., dissenting).

Given this confusion, we take the opportunity to clarify the law.

Lesser Included and Lesser Degree Offenses

As Peterson illustrates, confusion also exists between lesser included and lesser

degree offenses. Thus, it is useful to briefly explore the differences between the two, as

well as the progression of our case law interpreting lesser degree and lesser included

offenses.

Two statutes form the basis for lesser included and lesser degree offenses: RCW

10.61.003 and RCW 10.61.006. RCW 9A.04.100(2) addresses convicting a person of the

lesser degree crime. RCW 10.61.003 (inferior degree) provides,

Upon an indictment or information for an offense consisting of different
degrees, the jury may find the defendant not guilty of the degree charged in
the indictment or information, and guilty of any degree inferior thereto, or
of an attempt to commit the offense.

RCW 10.61.006 (lesser included) provides, “In all other cases the defendant may be

found guilty of an offense the commission of which is necessarily included within that

with which he or she is charged in the indictment or information.”

“Unlike a lesser included offense, a lesser degree offense may have an element

that is not an element of the greater offense. For example, second degree assault (by

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No. 98256-2

torture) is an inferior degree offense for first degree assault (by inflicting great bodily

injury), even though the lesser degree offense has an element that is not a part of the

greater degree offense and thus does not qualify as a lesser included offense.” 11

WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 4.11

cmt. at 99 (4th ed. 2016) (WPIC) (citing Peterson, 133 Wn.2d at 891-92).

Additionally, RCW 9A.04.100(2) provides that “[w]hen a crime has been proven

against a person, and there exists a reasonable doubt as to which of two or more degrees

he or she is guilty, he or she shall be convicted only of the lowest degree.”

The rationale for considering lesser offenses dates to 16th century English

common law. Condon, 182 Wn.2d at 328 (González, J., dissenting). The common law

rule existed to aid the “‘prosecution when the evidence introduced at trial failed to

establish an element of the crime charged.’” Id. (quoting State v. Berlin, 133 Wn.2d 541,

544, 947 P.2d 700 (1997)); see also Keeble v. United States, 412 U.S 205, 208, 93 S. Ct.

1993, 36 L. Ed. 2d 844 (1973). The doctrine of lesser included offenses evolved to

protect procedural fairness and substantial justice for the accused. Condon, 182 Wn.2d at

328.

Both RCW 10.61.003 (inferior degree offenses) and RCW 10.61.006 (lesser

included offenses) were set forth in former RCW 10.61.010 (1909):

Upon the trial of an indictment or information, the defendant may be
convicted of the crime charged therein, or of a lesser degree of the same
crime, or of an attempt to commit the crime so charged, or of an attempt to
commit a lesser degree of the same crime. Whenever the jury shall find a
verdict of guilty against a person so charged, they shall in their verdict
specify the degree or attempt of which the accused is guilty.

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No. 98256-2

Though RCW 10.61.003 and RCW 10.61.006 reflect different circumstances, they have

similar applications. Comments to WPIC 4.11 (lesser included crime or lesser degree)

clarify that the distinction between lesser included crimes and inferior degree crimes only

matters to a judge when deciding whether to instruct the jury about a lesser crime. “The

instruction applies regardless of whether the crime is a lesser degree crime or a lesser

included crime. In either instance, the framework for juror decision-making is the same.”

11 WPIC 4.11 cmt. at 98 (citing State v. Tamalini, 134 Wn.2d 725, 730-35, 953 P.2d 450

(1998)).

Tracing back the precedent, Workman relied on a line of cases involving lesser

included offenses: Snider, which relied on Gallagher, which in turn relied on Foley,

which then relied on Gottstein. See, e.g., State v. Snider, 70 Wn.2d 326, 422 P.2d 816

(1967) (the defendant was not entitled to the lesser included offense because the Snider

court held there must be some basis in the evidence produced at trial positively inferring

that the lesser crime was committed and upon which the jury could make a finding as to

the lesser included offense); State v. Gallagher, 4 Wn.2d 437, 447, 103 P.2d 1100 (1940)

(“a defendant may not be convicted of a lesser degree of crime which is included in a

greater degree unless evidence is adduced to sustain a conviction upon the lesser degree”

(emphasis added)); State v. Foley, 174 Wash. 575, 580, 25 P.2d 565 (1933) (“the lesser

degree of crime must be submitted to the jury along with the greater degree, unless the

evidence positively excludes any inference that the lesser crime was committed”

(emphasis added)); State v. Gottstein, 111 Wash. 600, 602, 191 P. 766 (1920) (“it must

16
No. 98256-2

affirmatively appear from the evidence that the crime of manslaughter is excluded before

the court will be justified in refusing to submit that crime to the jury. It has been

frequently held that, where the evidence excludes the lesser offense, such lesser offense

should not be submitted to the jury”).

Gallagher, Foley, and Gottstein all concerned inferior degree offenses. The

progression from Gottstein to Snider illuminates the tension between Workman and

Fernandez-Medina. The Gottstein line paints an inconsistent standard for lesser included

offenses. For cases like Snider, which considered lesser included offenses, the standard

was inference—a positive inference from the evidence presented that the lesser crime was

committed. For cases such as Gallagher, Foley, and Gottstein, which considered inferior

degree offenses, the standard required evidence excluding the greater crime. The tension

in Workman’s past was resolved by Fowler, which, as noted, affirmed that Workman

requires a positive inference from the evidence presented that the lesser crime was

committed. Workman’s past, thus, evidences the present tensions in this case.

B. Interpreting Workman

The State correctly notes that there is now one standard. The reason lesser

included instructions are given is to assist the jury in weighing the evidence, determining

witness credibility, and deciding disputed questions of fact. State v. McDaniels, 30

Wn.2d 76, 88, 190 P.2d 705 (1948), overruled in part on other grounds by State v.

Partridge, 47 Wn.2d 640, 289 P.2d 702 (1955). The jury, not the trial judge, is “‘the sole

and exclusive judges of the evidence.’” Id. Although there may be conflicting evidence,

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No. 98256-2

this evidence presents a question of fact for the jury. The conflicts in the evidence

merely present a question of fact for the jury. State v. Kirkby, 20 Wn.2d 455, 456, 147

P.2d 947 (1944).

Implicit within Workman’s reasoning is the idea that when there is affirmative

evidence from which the jury could conclude that only the lesser included offense

occurred, a lesser offense instruction should be given. The word “only” is meant to

suggest that a jury might have a reasonable doubt about whether the charged crime was

committed but may find that, instead, the lesser crime was committed. Thus, the trial

court should consider whether any affirmative evidence exists upon which a jury could

conclude that the lesser included offense was committed. The test was never intended to

require evidence that the greater, charged crime was not committed—only that a jury,

faced with conflicting evidence, could conclude the prosecution had proved only the

lesser or inferior crime.

Fernandez-Medina has caused confusion and, in this case, resulted in the court

itself weighing the evidence and denying a lesser included instruction when the evidence

presented should have been weighed by the jury. We emphasize that that is not the trial

court’s role under Workman.

In sum, we reaffirm that the factual requirement for giving a lesser or inferior

degree instruction is that some evidence must be presented—from whatever source,

including cross-examination—which affirmatively establishes the defendant’s theory

before an instruction will be given.

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No. 98256-2

C. Applying Workman in This Case

Defendants are entitled to the benefit of all the evidence presented at trial,

regardless of whether they were the introducing party. See 11 WPIC 1.02. When the

appellate court determines if the evidence at trial is sufficient to support an instruction, it

views the “supporting evidence in the light most favorable to the party that requested the

instruction.” Fernandez-Medina, 141 Wn.2d at 455-56. If the evidence permits a jury to

rationally find a defendant guilty of the lesser offense, a lesser included offense

instruction should be given. Beck v. Alabama, 447 U.S. 625, 635, 100 S. Ct. 2382, 65 L.

Ed. 2d 392 (1980). Generally, a defendant may argue inconsistent defenses if the

defenses are supported by evidence. State v. Frost, 160 Wn.2d 765, 772, 161 P.3d 361

(2007). Although 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 guilty.

Fowler, 114 Wn.2d at 67. The court typically “err[s] on the side of instructing juries on

lesser included offenses.” Henderson, 182 Wn.2d at 736.

The relevant statutes in this case are 9A.36.021 (assault in the second degree) and

RCW 9A.36.041 (assault in the fourth degree). “A person is guilty of assault in the

second degree if he . . . [a]ssaults another by strangulation.” RCW 9A.36.021(1)(g).

“Strangulation,” as defined under RCW 9A.04.110(26), “means to compress a person’s

neck, [which would obstruct a] person’s blood flow or ability to breathe, or doing so with

the intent to obstruct the person’s blood flow or ability to breathe.” “A person is guilty of

assault in the fourth degree if [he intentionally] assaults another.” RCW 9A.36.041.

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Although Coryell requested a lesser included offense instruction, fourth degree

assault is better described as an inferior degree of second degree assault. However, as in

Fernandez-Medina, “[t]he failure to note the distinction between lesser included and

inferior degree offense instructions is not . . . significant in this case . . . because the test

for determining if a party is entitled to an instruction on an inferior degree offense differs

from the test for entitlement to an instruction on a lesser included offense only with

respect to the legal component of the test.” 141 Wn.2d at 454-55.

The State argues the trial court and the Court of Appeals correctly applied the

factual prong of the Workman test because even when the evidence is considered in the

light most favorable to Coryell, nothing from the record shows Coryell committed the

lesser crime instead of the greater crime. Br. of Resp’t at 8-10 (Wash. Ct. App. No.

52369-8-II (2019)); Answer to Pet. for Review at 17. As noted above, rather than

looking at all of the evidence presented, the trial court concluded that a fourth degree

lesser degree instruction was not warranted since Coryell denied strangling the victim.

Again, the testimony in this case is either that Ms. Hart’Lnenicka was
strangled or she wasn’t strangled. There’s no testimony from Mr. Coryell
that he put his hands around her neck but did not strangle her as that term is
defined by law. So a lesser included of assault 4 would be improper.

2 VRP (June 26, 2018) at 214.

As amicus WACDL points out, it appears that the trial court’s reasoning applies

only to Coryell’s first theory. Br. of WACDL as Amicus Curiae at 4. Just as with the

defendant in Fernandez-Medina, Coryell raised two defenses: (1) that any force he used

was either in self-defense or defense of his property or (2) that the force he used did not

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prevent Hart’Lnenicka from breathing. Similarly, the defendant in Fernandez-Medina

argued that he was not with the victim at the time of the assault, but if the jury found that

he was with the victim at the time of the assault, then there was an inference that he was

guilty only of the inferior degree assault. Although Coryell stated that he was not with

Hart’Lnenicka in the laundry room, if the jury found that there was an assault in the

laundry room, then he was entitled to the inference that he was guilty only of fourth

degree assault based on the police officer’s testimony that he saw no petechial

hemorrhaging.

Moreover, under Coryell’s version of events, there was one continuous event, not

two separate events. Hart’Lnenicka testified to two separate times when she says Coryell

put his hands on her neck. The first time was in the living room, which she says did not

impact her ability to breathe. The second time occurred in the laundry room when the

victim says she could not breathe. If the jury believed that there were two assault

incidents, but had a reasonable doubt about whether Coryell put his hands around

Hart’Lnenicka’s neck two separate times, they might believe that the marks on

Hart’Lnenicka’s neck came from the first incident, which did not impact her breathing.

Yet, with no choice as to the degree of assault, the jury would be left with the decision to

let Coryell go free or convict him of the charged crime.

Under the Workman test, the question is not whether the evidence excludes the

greater charged crime. Instead, the question is whether the evidence raises an inference

that the lesser degree or lesser included offense was committed such that a jury might

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have a reasonable doubt as to which degree of assault was committed, believe that some

level of assault was committed, and find the defendant guilty of the lesser offense.

Coryell contends the evidence was sufficient to raise an inference that he committed the

lesser degree offense because Officer Malone testified he did not see any signs of

petechial hemorrhaging, which would have likely existed if Hart’Lnenicka had been

strangled. Coryell further contends that his case is legally indistinguishable from the

defendant in Fernandez-Medina and that he was entitled to the benefit of all the evidence

presented at trial.

Amicus WACDL buttresses Coryell’s argument, reasoning that neither law nor

instructions to the jury differentiate between evidence from the defendant and evidence

from the State and that Fernandez-Medina is directly on point in this case. 4

As this court noted in Henderson,

In criminal trials, juries are given the option of convicting defendants of
lesser included offenses when warranted by the evidence. Giving juries this
option is crucial to the integrity of our criminal justice system because
when defendants are charged with only one crime, juries must either
convict them of that crime or let them go free. In some cases, that will
create a risk that the jury will convict the defendant despite having
reasonable doubts.

182 Wn.2d at 736.

4
Amicus WACDL also asserts that because the trial court erred in denying the lesser included
instruction, Coryell was denied his Sixth Amendment right to present a complete defense. U.S.
CONST. amend. VI. The State argues that we should consider this case on the issues for which
review was granted and that we should consider the amicus only to the extent that it is related to
those issues. Here, we agree with the State.
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We hold that the trial court erred when it denied a lesser degree instruction on

fourth degree assault. The evidence supported an inference that Coryell assaulted, but

did not strangle, his girlfriend, and thus, he was entitled to a lesser degree instruction.

This is consistent with the test in Workman and with the legislature’s directive in RCW

9A.04.100(2), which provides, “When a crime has been proven against a person, and

there exists a reasonable doubt as to which of two or more degrees he or she is guilty, he

or she shall be convicted only of the lowest degree.”

CONCLUSION

We reaffirm that Workman provides the proper factual test for determining when a

court should instruct a jury on a lesser or inferior degree crime. We conclude that the

trial court erred in requiring evidence that would exclude the commission of the charged

crime. In this case there was evidence, through the police officer, that cast doubt on

whether Coryell strangled the victim as defined in the assault statutes, entitling him to a

lesser degree assault instruction. Accordingly, we vacate Coryell’s conviction and

remand the case for further proceedings.

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___________________________________
Madsen, J.

WE CONCUR:

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