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State v. Siddiq6/27/2005
ble doubt. State v. Mewes, 84 Wn. App. 620, 622, 929 P.2d 505 (1997). The evidence presented, viewed in the light most favorable to the State, was sufficient for the jury to find that Siddiq intended to shoot Jimicum. This intent carried over to the shooting of Young and Wiggins. The trial court did not err in its ruling.
INSTRUCTION 25
Siddiq next argues that Jury Instruction 25 relieved the State of its burden to prove that Siddiq intentionally assaulted Young, Wiggins, and Gogo.
Siddiq did not take exception to the court's giving of Instruction 25. Generally, a defendant cannot challenge a jury instruction on appeal without showing that he took exception to that instruction in the trial court. State v. Salas, 127 Wn.2d 173, 181, 897 P.2d 1246 (1995). Siddiq first contends that the error was preserved for review because he raised the issue in his motion for a new trial. But the rationale behind the rule requiring timely and well stated objections is that timely objections allow the trial court the opportunity to correct any error. Salas, 127 Wn.2d at 182. 'The rule reflects a policy of encouraging the efficient use of judicial resources. The appellate courts will not sanction a party's failure to point out at trial an error which the trial court, if given the opportunity, might have been able to correct to avoid an appeal and a consequent new trial.' State v. Scott, 110 Wn.2d 682, 685, 757 P.2d 492 (1988) (citation omitted). Judicial economy is not served by allowing a party to wait until the jury has been instructed and returned its verdict before taking exception to an instruction and moving for a new trial. Thus, Siddiq did not make a timely exception.
However, instructing the jury in a manner that relieves the State of its burden of proof is an error of constitutional magnitude that a defendant can raise for the first time on appeal. State v. Byrd, 125 Wn.2d 707, 714, 887 P.2d 396 (1995). Because Siddiq's appeal raises that issue, we will consider it.
Instruction 25 defined for the jury what constitutes an assault. Each of the alternate means of assault included a qualifier that the person who was shot, injured, or experiencing fear of bodily injury need not be the same person Siddiq intended to shoot, injure, or place in fear:
An assault is an intentional shooting of another person. It is not necessary that the person shot be the same as the person that the defendant intended to shoot.
An assault is also an act done with intent to inflict bodily injury upon another, tending, but failing to accomplish it, and accompanied with the apparent present ability to inflict the bodily injury if not prevented. It is not necessary that bodily injury be inflicted. It is not necessary that the person injured be the same as the person the defendant intended to injure.
An assault is also an act done with the intent to create in another apprehension and fear of bodily injury, and which creates in another a reasonable apprehension and imminent fear of bodily injury even though the actor did not actually intend to inflict bodily injury. It is not necessary that the person who experiences the fear of bodily injury be the same as the person whom the defendant intended to place in fear.
Siddiq contends that the instruction embodies the doctrine of transferred intent, and that the doctrine does not apply in second-degree assault. Therefore, he argues, Instruction 25 impermissibly relieved the State of its burden of proving that the person assaulted is the one the defendant intended to assault.
Siddiq's argument resembles one rejected by the Supreme Court in State v. Wilson, 125 Wn.2d 212, 883 P.2d 3
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