IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II

STATE OF WASHINGTON, No. 51774-4-II

 Respondent,

v.

ERICK NATHAN CHAPMON, UNPUBLISHED OPINION

 Appellant.

GLASGOW, A.C.J.—Sasha Green, Jessica Newman, and Tonya Carroll attended a 

New Year’s Eve party together where they got into an argument with another group of 

women and decided to leave. As Green was pulling out of her parking spot on the street,

Erick Nathan Chapmon fired multiple shots at the car and one bullet hit Newman in the 

leg. Chapmon claimed he fired because he was afraid the car was going to hit partygoers 

standing nearby.

A jury found Chapmon guilty of three counts of second degree assault with a 

firearm enhancement on each count. Chapmon argues that the trial court erred when it gave 

a transferred intent instruction connected to the second degree assault charges because it 

relieved the State of the burden of proving every element and was an improper judicial 

comment on the evidence. Chapmon also argues that the trial court erred in sentencing 

Chapmon to three firearm enhancements because, even though the special verdict form 

used the term “firearm,” the special verdict instruction referred to a “deadly weapon.” 

Filed

Washington State

Court of Appeals

Division Two

July 20, 2021
No. 51774-4-II

2

Finally, Chapmon argues we should strike the $200 filing fee from his judgment and 

sentence because he is indigent.

We affirm Chapmon’s convictions and the firearm enhancements but remand for 

the trial court to strike the filing fee.

FACTS

Witnesses provided varying descriptions of events leading up to the shooting. Green, 

Newman, and Carroll went to a New Year’s Eve party, and Green was the designated driver for 

the group. Shortly after midnight, Newman, who was very intoxicated, was in the bathroom crying. 

Green tried to comfort Newman and brought her outside to talk. While Green and Newman were 

outside, several women approached Green, including Sydney Stovall, Chapmon’s wife. Someone 

had hit Stovall in the face with the bathroom door hard enough to cause bleeding. Stovall believed 

that Newman was responsible for her injury. Tension among the women escalated. Eventually, 

Carroll joined her friends outside, and Chapmon came out to check on his wife. 

Green, Newman, and Carroll got into Green’s car and started to leave. Shortly after the

women got in, Chapmon fired at the car. One of the shots hit Newman in the leg. Green panicked 

and drove off. A few blocks away, Green stopped to call 911. The three women spoke with the 

police and Newman went to the hospital. A bone in her leg was broken.

The State charged Chapmon with three counts of first degree assault with a firearm 

enhancement for each count. 

At trial, Green explained she felt threatened by the way Stovall was treating her and 

Newman. She testified that as she was trying to leave with her friends, someone tried to pull Carroll 

out of the car and people starting punching and kicking the car. When Green tried to drive forward 
No. 51774-4-II

3

out of her parking space on the street, she was blocked by a car that was stopped in the middle of 

the street. Green panicked and was afraid of what people would do if she waited for the car to 

move. Green backed up to turn and go in a different direction. As Green was backing up, she saw 

Chapmon with a gun at his side. As Green was about to go forward, Newman rolled down her 

window and taunted Chapmon. Chapmon started shooting at Green’s car. Green and Carroll were 

afraid they would be shot. 

Chapmon also testified. He explained that his wife had been hit in the face and that she 

went outside to get some air with a friend. After a few minutes, Chapmon went outside to check 

on his wife. Chapmon saw the women arguing and Green getting in her car to leave. Chapmon 

testified that Green drove forward, not backwards, onto the curb. People started to back up quickly,

and Chapmon drew his gun and yelled for Green to stop. Instead of stopping, Green drove forward, 

so Chapmon aimed at the bottom of the car and started firing because the car was close to running 

people over. Chapmon claimed he was not upset with anyone in the car and that he never heard 

Newman say anything to him. 

The trial court instructed the jury on first degree assault and the lesser included offense of 

second degree assault. The to convict instruction for each charge of first degree assault required

the jury to find that “the defendant assaulted [Sasha Green, Jessica Newman, or Tonya Carroll] . . 

. with a firearm, . . . [and] with intent to inflict great bodily harm.” Clerk’s Papers (CP) at 91, 93, 

95. The to convict instruction for each charge of second degree assault against Green and Carroll

required the jury to find that “the defendant assaulted [Sasha Green or Tonya Carroll] with a deadly 

weapon.” CP at 94, 96. The to convict instruction for second degree assault against Newman added 

an alternative that the defendant “intentionally assaulted” Newman and “recklessly inflicted 
No. 51774-4-II

4

substantial bodily harm,” in addition to “assaulted Jessica Newman with a deadly weapon.” CP at 

92.

The State asked the trial court to give a transferred intent instruction, telling the jury that 

“if a person acts with intent to assault another person, but the act harms an unintended person, the 

actor is also deemed to have acted with intent to assault the unintended person.” CP at 90. Harm 

under this instruction included causing “a harmful or offensive touching, striking or shooting of 

the unintended person, and/or . . . creat[ing] in the unintended person a reasonable apprehension 

and imminent fear of bodily injury.” Id. The State relied on State v. Elmi, 166 Wn.2d 209, 215, 

207 P.3d 439 (2009) and WPIC 10.01.011to support this instruction. Chapmon objected but the 

trial court concluded the instruction was appropriate in this case. The trial court instructed the jury 

on transferred intent for both first degree assault and for the lesser included second degree assault.

Finally, the trial court instructed the jury that it must determine whether “the State [proved] 

beyond a reasonable doubt that the defendant was armed with a deadly weapon at the time of the 

commission of the crime.” CP at 106 (emphasis added). Chapmon did not object to this instruction.

The instruction went on to explain that a “firearm is a deadly weapon.” Id. The trial court also 

provided the jury with the definition of a “firearm.” In contrast, the special verdict forms asked the 

jury to determine if Chapmon was “armed with a firearm at the time of the commission of the 

crime.” CP at 108, 112, 115 (emphasis added).

 

1

11 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 10.01.01

(5th ed. 2021).
No. 51774-4-II

5

The jury found Chapmon not guilty of all three counts of first degree assault, but it found 

him guilty of three counts of second degree assault. The jury also found that Chapmon was armed 

with a firearm during the commission of the crimes. Chapmon appeals. 

ANALYSIS

I. TRANSFERRED INTENT INSTRUCTION

The State must prove every element of the crime charged beyond a reasonable doubt. State 

v. Brown, 147 Wn.2d 330, 339, 58 P.3d 889 (2002). If a jury instruction relieves the State of its 

burden to prove an element, then reversal is required. Id. We review jury instructions de novo.

State v. Sibert, 168 Wn.2d 306, 311, 230 P.3d 142 (2010).

Chapmon argues that the trial court erred when it gave a transferred intent instruction

because it relieved the State of its burden to prove the required element of intent. Chapmon also 

asserts that the transferred intent reasoning that is applicable for first degree assault does not apply 

to second degree assault. Finally, Chapmon argues the transferred intent instruction was an 

improper judicial comment on the evidence. We disagree and conclude that the trial court did not 

err.

A. Second Degree Assault and Transferred Intent

Under RCW 9A.36.021(1)(a) and (c) a defendant is guilty of second degree assault if the 

defendant “[i]ntentionally assaults another and thereby recklessly inflicts substantial bodily harm” 

or “[a]ssaults another with a deadly weapon.” The legislature has declined to provide a definition 

of “assault,” so courts have used the common law definitions. State v. Byrd, 125 Wn.2d 707, 712, 

887 P.2d 396 (1995). In Washington, there are three definitions of “assault:” (1) unlawful touching 
No. 51774-4-II

6

(battery), (2) an “attempt with unlawful force to inflict bodily injury” (attempted battery), and (3) 

“putting another in apprehension of harm.” Elmi, 166 Wn.2d at 215.

To convict a person of second degree assault, the State is required to prove the defendant 

had “specific intent either to create apprehension of bodily harm or to cause bodily harm.” Byrd, 

125 Wn.2d at 713. The State must prove the defendant intended to produce a specific result, not

just that the defendant intended to perform an act that created the result. Elmi, 166 Wn.2d at 215.

Common law transferred intent has been a part of Washington law for over 100 years. State 

v. McGonigle, 14 Wash. 594, 601-02, 45 P. 20 (1896). Under the doctrine of transferred intent,

once the State has established the defendant’s intent to inflict harm on a first victim, that mens rea 

transfers to any unintended victim who was inadvertently harmed. State v. Clinton, 25 Wn. App. 

400, 403, 606 P.2d 1240 (1980).

B. Burden of Proof

Chapmon first notes that the Washington Supreme Court’s transferred intent analysis in 

Elmi, 166 Wn.2d at 218, relied upon particular language in the first degree assault statute that is 

absent in the second degree assault statute. As a result, Chapmon contends, the trial court was 

incorrect to rely on Elmi to support a transferred intent instruction in a second degree assault case. 

We agree that Elmi is distinguishable because it involved first degree, not second degree, assault. 

Id. at 218-19.

Even so, courts have applied the common law doctrine of transferred intent in second 

degree assault cases involving physical harm. State v. Aguilar, 176 Wn. App. 264, 275-77, 308 

P.3d 778 (2013); State v. Wilson, 113 Wn. App. 122, 128, 131, 52 P.3d 545 (2002). In Clinton, the 

defendant swung a pipe at one person, but it slipped out of his hand and severely injured another 
No. 51774-4-II

7

person. 25 Wn. App. at 401-02. Clinton, like Chapmon, argued that the transferred intent 

instruction relieved the State from having to prove the specific intent necessary for a second degree 

assault conviction. Id. at 402-03. Division Three concluded that a transferred intent instruction was 

proper in these circumstances and affirmed the defendant’s second degree assault conviction. Id.

at 403, 405.

Chapmon has failed to show why transferred intent should not apply to second degree 

assault where a defendant’s action put another in apprehension of harm. Chapmon asserts that 

naming the victim in a second degree assault instruction prevents the application of transferred 

intent, relying on State v. Abuan, 161 Wn. App. 135, 257 P.3d 1 (2011). But Abuan does not help 

Chapmon.

In Abuan, the defendant was convicted of two counts of second degree assault after the 

defendant fired a gun at another gang member who was in a garage attached to a house. Id. at 140-

43. The victim for one of the counts was the person in the garage and the victim for the other count 

was his brother inside the house. Id. at 141-42, 145. We reversed the convictions on unrelated 

grounds. Id. at 141. We noted, however, that there was no room for a transferred intent analysis 

when the unintended victim, the brother in the house, was identified by name in the to convict 

instruction and no transferred intent instruction was sought or provided. Id. at 156. Moreover, in 

Abuan, the named unintended victim was in the house, not the garage, no bullets struck the house, 

and the unintended victim did not see the shooting. Id. at 159.

Here, the defendant admitted he shot at Green’s car. The three victims were all inside the 

car, Newman was hit with a bullet, and Green and Carroll testified they were afraid they would be 

hurt by the gunfire. A transferred intent instruction was sought and provided. Thus, the jury could 
No. 51774-4-II

8

infer both a specific intent to harm or cause apprehension of harm in at least one of the women in 

the car and that intent could legitimately transfer to the other victims in the car. Abuan does not 

require a different conclusion.

We conclude that Chapmon has failed to establish the trial court erred when it gave the 

jury a transferred intent instruction in a case involving second degree assault based on 

apprehension of harm.

C. Comment on the Evidence

Chapmon also argues the instruction on transferred intent was an improper judicial 

comment on the evidence that established one of the elements of the crime for the jury. We

conclude that the trial court did not comment on the evidence when it provided a transferred intent 

instruction.

Under article IV, section 16 of the Washington Constitution, a trial court is prohibited from 

“‘conveying to the jury his or her personal attitudes toward the merits of the case’ or instructing a 

jury that ‘matters of fact have been established as a matter of law.’” State v. Levy, 156 Wn.2d 709, 

721, 132 P.3d 1076 (2006) (quoting State v. Becker, 132 Wn.2d 54, 64, 935 P.2d 1321 (1997)). A 

jury instruction that accurately states the law is not an impermissible comment on the evidence. 

State v. Brush, 183 Wn.2d 550, 557, 353 P.3d 213 (2015).

Here, Chapmon fails to show that the transferred intent instruction was an improper judicial 

comment on the evidence. The instruction did not express the judge’s opinion about the evidence, 

nor did the instruction establish a fact as a matter of law. As explained above, the instruction was 

permissible in a second degree assault case and it accurately stated the common law doctrine of 

transferred intent.
No. 51774-4-II

9

We conclude that the trial court did not comment on the evidence when it gave the 

transferred intent instruction.

II. FIREARM ENHANCEMENT

Chapmon argues that the trial court erred when it sentenced Chapmon to firearm 

enhancements because the special verdict instruction told the jury it needed to find beyond a 

reasonable doubt that Chapmon was “‘armed with a deadly weapon’” at the time of the crime, not 

armed with a firearm. Br. of Appellant at 17 (emphasis added).

We conclude that even if the trial court erred when it gave the jury a special verdict 

instruction that used “deadly weapon” instead of “firearm,” this was not a manifest error 

warranting review for the first time on appeal and, even if it was, it would be a harmless error.

A. Scope and Standard of Review

Generally, we do not consider a claimed error if the appellant failed to raise the error below. 

State v. Chacon, 192 Wn.2d 545, 547, 431 P.3d 477 (2018). However, an appellant may raise a 

manifest error that affects a constitutional right for the first time on appeal. RAP 2.5 (a)(3); 

Chacon, 192 Wn.2d at 547. For there to be a manifest constitutional error there must be “‘a 

plausible showing by the [appellant] that the asserted error had practical and identifiable 

consequences in the trial of the case.’” Chacon, 192 Wn.2d at 548 (alteration in original) (internal 

quotation marks omitted) (quoting State v. O’Hara, 167 Wn.2d 91, 99, 217 P.3d 756 (2009)). Not 

every type of error in a jury instruction is automatically a manifest constitutional error. Id. Once 

the appellant establishes a manifest constitutional error, then the court must consider whether the 

error was harmless. O’Hara, 167 Wn.2d at 99.
No. 51774-4-II

10

If an appellant challenges a jury instruction, we review the instruction de novo and consider 

the challenged instruction within the context of the other instructions. State v. Bennett, 161 Wn.2d 

303, 307, 165 P.3d 1241 (2007). “‘Jury instructions are sufficient when they allow counsel to argue 

their theory of the case, are not misleading, and when read as a whole properly inform the trier of 

fact of the applicable law.’” Keller v. City of Spokane, 146 Wn.2d 237, 249, 44 P.3d 845 

(2002) (quoting Bodin v. City of Stanwood, 130 Wn.2d 726, 732, 927 P.2d 240 (1996)). An error 

in the jury instructions is harmless if, beyond a reasonable doubt, the jury’s verdict would have 

been the same absent the error. Brown, 147 Wn.2d at 341.

B. Manifest Error

Chapmon argues he can raise an error that inhibits his right to a jury trial for the first time 

on appeal. Reply Br. of Appellant at 6 (citing State v. Hughes, 154 Wn.2d 118, 143, 110 P.3d 192 

(2005), abrogated by Washington v. Recuenco, 584 U.S. 212, 126 S. Ct. 2546, 165 L. Ed. 2d 466 

(2006)). But Hughes does not support Chapmon’s position. Hughes addressed whether a Blakely2

error, where a judge has found a fact that should have been decided by a jury, is ever subject to a 

harmless error analysis. 154 Wn.2d at 142-43. The Hughes court did not hold that any error 

impacting the right to a jury trial can be raised automatically for the first time on appeal. Chapmon

fails to show that his alleged error was a manifest error; instead, he merely relies on the fact he is 

alleging a constitutional error.

Even assuming Chapmon raises a constitutional error, he fails to show that the error “‘had 

practical and identifiable consequences in the trial of the case.’” Chacon, 192 Wn.2d at 548

(internal quotation mark omitted) (quoting O’Hara, 167 Wn.2d at 99). The State properly charged 

 

2 Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).
No. 51774-4-II

11

Chapmon with a firearm enhancement and provided the jury facts to support a firearm 

enhancement, a “firearm” definition was provided to the jury, the jury was told that a “firearm is 

a deadly weapon,” and, significantly, the jury was provided with a special verdict form that asked 

the jury to determine whether Chapmon was armed with a firearm. CP at 83, 106. The only error 

was the wording in the special verdict instruction that used “deadly weapon” instead of “firearm.”

And Chapmon fails to show that the jury would have found that he was not armed with a firearm 

during the assaults if the special verdict instructions had used “firearm” instead of “deadly 

weapon.” There was only one weapon, a firearm, and Chapmon admitted to shooting the firearm

at the women. Therefore, the use of “deadly weapon” instead of “firearm” was not a manifest error 

affecting a constitutional right.

Furthermore, even if we were to consider Chapmon’s claim, any error was harmless. In 

State v. Vazquez, 200 Wn. App. 220, 222, 402 P.3d 276 (2017), the defendant was charged with 

first degree assault and rioting while armed, and a firearm enhancement was charged on each 

count. The special verdict forms also properly asked whether Vazquez was armed with a 

“‘firearm.’” Id. at 223. However, the special verdict instruction used “deadly weapon” instead of 

“firearm” and the jury was not given the definition of “firearm.” Id. at 222-23. The jury found 

Vazquez was armed with a firearm during the commission of the crime. Id. at 223.

The court concluded that the use of “deadly weapon,” rather than “firearm,” was 

instructional error and, therefore, the court considered whether the error was harmless beyond a 

reasonable doubt. Id. at 225. While the error was significant, it did not require reversal because 

Vazquez admitted to firing the gun and there was video evidence satisfying any concern that the 

weapon met the definition of “firearm.” Id. at 224-25.
No. 51774-4-II

12

Here, as in Vazquez, any error was harmless beyond a reasonable doubt. The State charged 

Chapmon with a firearm enhancement, Chapmon admitted firing his gun at the car, there was no 

other weapon involved, and the jury found that Chapmon was armed with a firearm when it used 

the special verdict form that correctly used “firearm” instead of “deadly weapon.” Here, unlike in 

Vazquez, the trial court instructed the jury on the definition of a “firearm.” Thus, even if there were 

error, it was harmless beyond a reasonable doubt. Vazquez also supports our determination that 

any error did not have any practical consequences and was therefore not manifest.

Chapmon relies on State v. Recuenco, 163 Wn.2d 428, 180 P.3d 1276 (2008), to argue that 

the imposition of a firearm enhancement is error that can never be harmless if the jury was given 

a “deadly weapon” instruction. Chapmon’s interpretation of Recuenco is incorrect. The Recuenco

court considered whether sentencing the defendant to a firearm enhancement was harmless where

Recuenco was never charged with a firearm enhancement, the jury was never given the facts to 

support the firearm enhancement, and the jury returned a finding that Recuenco was armed with a 

deadly weapon, not a firearm. Id. at 431, 435-36, 439. The court concluded the error could not be 

harmless because the trial court exceeded its authority in imposing a firearm enhancement at 

sentencing. Id. at 441. Here, the jury found that Chapmon used a firearm, not just a deadly weapon.

Chapmon also relies on In re Personal Restraint of Delgado, 149 Wn. App. 223, 204 P.3d 

936 (2009). In Delgado, the State charged the defendants with a deadly weapon sentencing 

enhancement. Id. at 229. Even though the special verdict forms used “firearm,” a “firearm”

definition was not given and the special verdict instruction used “deadly weapon” instead of 

“firearm.” Id. The Delgado court concluded the mere use of “firearm” in the special verdict form, 

without a “firearm” definition, was insufficient to allow the trial court to impose firearm 
No. 51774-4-II

13

enhancements. Id. at 236-37. A harmless error analysis could not be applied because the State 

failed to charge the defendants with firearm enhancements, so the error was not an error with the

instructions. Id. at 237.

Here, unlike Delgado, Chapmon was charged with a firearm enhancement and the jury was 

provided with the definition of “firearm.” The Delgado court noted that if the defendants had been 

properly charged, as Chapmon was, then a harmless error analysis would apply. Id. And where it 

is undisputed that a firearm was the weapon used, as was the case here, reference to “deadly 

weapon” in the instruction would have been harmless. Id.

We conclude that even if there were an error with the special verdict instruction, it was not 

manifest and it was harmless. 

III. LEGAL FINANCIAL OBLIGATION

Chapmon argues that we should strike the $200 filing fee the trial court imposed because 

he is indigent. The State concedes that we should remand to strike the $200 criminal filing fee. 

In 2018, the legislature amended RCW 36.18.020(2)(h) to prohibit courts from imposing 

the criminal filing fee on indigent defendants. LAWS OF 2018, ch. 269, § 17. Chapmon was 

sentenced before this amendment took effect, but the Supreme Court has held that this amendment 

applies prospectively to cases pending on appeal. State v. Ramirez, 191 Wn.2d 732, 750, 426 P.3d 

714 (2018). We accept the State’s concession and remand to the trial court to strike the criminal 

filing fee. 
No. 51774-4-II

14

CONCLUSION

We affirm Chapmon’s convictions and the firearm enhancements, but we remand for the 

trial court to strike the filing fee.

A majority of the panel having determined that this opinion will not be printed in the 

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040, 

it is so ordered.

Glasgow, A.C.J.

We concur:

Sutton, J.

Veljacic, J.