A Washington jury deciding a first-degree assault charge can be required to consider second-degree assault as an alternative, and a trial court that refuses a proper defense request for that lesser degree instruction risks losing the conviction on appeal. On October 19, 2026, Division One of the Court of Appeals vacated a first-degree assault conviction in a domestic violence strangulation case for exactly that reason.
When some evidence supports the defense theory that only the lower degree was committed, the defendant is entitled to the instruction. In State v. Wheeler, the defense offered evidence that the accused could not form the intent first-degree assault requires, and the judge still gave the jury no lower option on that count.
Blair Kim Moeller defends felony assault cases in Seattle and across King, Pierce, and Snohomish Counties through our criminal defense practice, including first-degree assault charges brought against a partner or spouse.
What a Lesser Degree Instruction Does
A lesser degree instruction is a jury instruction that lets jurors who doubt the charged degree of a crime convict on a lower degree of the same offense instead. The authority is RCW 10.61.003, which allows a jury to find a defendant not guilty of the degree charged and guilty of any inferior degree.
The instruction protects against a specific risk. A jury convinced the defendant did something wrong, but unsure about one element of the top charge, may resolve that doubt in favor of conviction if acquittal is the only other choice. Offering a third option removes that pressure.
Washington courts apply a three-part test from State v. Peterson (1997). Both statutes must proscribe one offense, the charge must be divided into degrees with the proposed offense an inferior degree, and there must be evidence that the defendant committed only the inferior offense. Under State v. Coryell (2021), that evidence is viewed in the light most favorable to the party asking for the instruction, and courts typically err on the side of giving it.
Why Intent Separates First- and Second-Degree Assault
First-degree assault under RCW 9A.36.011(1)(a) requires intent to inflict great bodily harm, and it is a class A felony. Second-degree assault by strangulation or suffocation under RCW 9A.36.021(1)(g) requires no such intent, and it is a class B felony. A jury that doubts the intent element has a real reason to choose the lower degree.
The evidence in Wheeler was that the defendant strangled his girlfriend twice and broke her arm. A defense psychiatrist testified that he was in a manic episode, and the psychiatrist who testified for the State agreed he appeared to be in one. The State relied heavily on a remark he made after the second strangulation as proof of intent, but the court found jurors could have read it several ways, including as the product of a manic mind.
The State had charged first-degree assault and added a separate count of second-degree assault, and it argued that the two counts made a lesser degree instruction unnecessary. The jury convicted on both. Division One disagreed with the State, noting it pointed to no decision approving that charging practice as a substitute. The jury was told to consider each count separately and was never told it could convict on the lower degree within the first-degree count.
Whether a lesser degree instruction is available depends on evidence developed well before trial. We would rather hear from you early than late. Call (206) 622-6562 to schedule a consultation.
What the Court of Appeals Ordered
The court presumed the instructional error was prejudicial, the rule when a proper lesser offense instruction is refused, and found the State had not shown otherwise. It vacated the first-degree conviction, affirmed the second-degree conviction, and remanded for resentencing on second-degree assault. The original sentence was 81 months on the first-degree count.
The opinion is unpublished, but it applies the Supreme Court's published decision in Coryell, where the defendant was also accused of choking the victim more than once. The State argued in Wheeler that the attack was a single course of conduct. The court answered that the same was true in Coryell and made no difference there.
Two practical points follow for anyone charged with assault against a partner. The request for the instruction should be made at trial, as it was here, and the record needs some evidence supporting the lower degree, which can come from cross-examination as well as from defense witnesses. Charges like these can also come alongside a petition for a domestic violence protection order, a civil case decided on a preponderance of the evidence under RCW 7.105.225, with its own hearing and its own consequences.
Talk to a Seattle Assault Defense Attorney About Your Charges
The difference between a class A and a class B felony can mean years in custody, and the evidence supporting a lesser degree instruction has to be in the record before the jury is instructed. Blair Kim Moeller, PLLC represents people charged with domestic violence assault in Seattle, Bellevue, Tacoma, and Everett, and Mark Blair began his career as a deputy prosecuting attorney in King, Yakima, and Thurston Counties before moving to defense work. Call (206) 622-6562 or send us a message to arrange a consultation with our attorneys.
