State v. McClam
In State v. McClam, 69 Wn. App. 885, 850 P.2d 1377, review denied, 122 Wn.2d 1021, 863 P.2d 1353 (1993), the defendant had been charged with possession of cocaine with intent to deliver.
He asserted a defense of general denial through his own testimony. Because the State presented other affirmative evidence, which tended to negate the existence of any intent to deliver the substance, the defendant sought an instruction on the lesser included offense of simple possession of a controlled substance.
The trial court declined to give the instruction, apparently concluding that the defendant's assertion of a general denial precluded him from claiming that he merely possessed the controlled substance without intent to deliver.
The Court of Appeals reversed the trial court, citing several nonbinding authorities for the proposition that defendants can present inconsistent defenses. McClam, 69 Wn. App. at 889, 890.
According to the court in McClam, "an inconsistent defense goes to the weight of, but does not entirely negate" the evidence supporting the lesser included instruction. McClam, 69 Wn. App. at 890.