dissenting:

I dissent because I believe there was ineffective assistance of counsel. Counsel should have objected to the intent instruction as violating the Sandstrom rule. 1 The only excuse given for failing to make that objection is that counsel hoped to convince the jury that Church had an honest but mistaken belief that the cab was going the wrong way. As stated by the government,

The entire defense thus depended upon Church not knowing which direction the cab was driving because of his voluntary intoxication. The trouble with this theory is that it is completely at odds with Washington law. In State v. Mriglot, 88 Wash.2d 573, 574-75 , 564 P.2d 784, 785-86 (1977) (footnote omitted), the court held:

The government did not charge Church with the obvious offense of simple assault. Such an offense is not easily excused because of intoxication. Little brain direction is required to deliver a blow. Here, however, the government charged Church with the much more serious and complex crimes of unlawful imprisonment and assault in the second degree. As pointed out by the majority, unlawful imprisonment requires that the defendant “knowingly” restrain another person, and assault in the second degree requires a knowing assault of another “with intent to commit a felony.” *645 Wash.Rev.Code §§ 9A.40.040, 9A.36.-020(l)(d). Thus, under Washington law, Church’s voluntary intoxication could have been a complete defense to both crimes charged, if he was so intoxicated as to negate the specific intent required for each crime. The evidence introduced established that Church was extremely drunk and would have strongly supported this theory.

In my opinion the only plausible defense that a competent attorney would have made in this case would be based on the absence of criminal intent due to intoxication. Moreover, this is a case where counsel’s ineffectiveness could well have had a direct effect on the outcome because defendant was deprived of a proper instruction to the jury on the issue of whether he did have the specific intent required for the crime.

The Supreme Court has mandated a strict standard for ineffective assistance of counsel. A defendant must show that counsel’s errors or omissions reflect a failure to exercise the skill, judgment, or diligence of a reasonably competent criminal defense attorney, and it must appear that defendant was prejudiced by counsel’s conduct. Strickland, 104 S.Ct. at 2064. Seldom can an appeals court say with certainty that counsel’s performance fell below this standard, but I believe that this is one such case.

The only defense which counsel attempted on Church’s behalf was contrary to Washington law. Additionally, counsel failed to assert the lack of specific intent as a defense, even though both crimes charged clearly required specific intent and Church’s level of intoxication strongly suggested that such a defense could be successful. Finally, there is nothing inconsistent in contending that the defendant was so intoxicated that he could not have formed the requisite intent and also contending that he was so intoxicated that he honestly believed that the vehicle was going in the wrong direction. Thus, even assuming that counsel’s theory had some hope of success, it would not have been weakened by arguing that there was an absence of the requisite intent because of intoxication. Effective assistance of counsel requires use of alternate theories if they are available.

I believe that the Strickland test is satisfied in this case and I therefore respectfully dissent.

. Counsel should have been alerted to the unconstitutionality of the intent instruction. Although Sandstrom was not announced until after the trial ended, other Washington and federal court decisions had already indicated the invalidity of burden-shifting instructions. See United States v. United States Gypsum Co., 438 U.S. 422 , 98 S.Ct. 2864 , 57 L.Ed.2d 854 (1978); Mullaney v. Wilbur, 421 U.S. 684, 700-01 , 95 S.Ct. 1881, 1890 , 44 L.Ed.2d 508 (1975); United States v. Haldeman, 559 F.2d 31, 116 (1976), cert. denied, 431 U.S. 933 , 97 S.Ct. 2641 , 53 L.Ed.2d 250 (1977); Cohen v. United States, 378 F.2d 751, 755 (9th Cir.), cert. denied, 389 U.S. 897 , 88 S.Ct. 217 , 19 L.Ed.2d 215 (1967); United States v. Barash, 365 F.2d 395, 402 (2d Cir.1966); United States v. Raleford, 352 F.2d 36, 40 (6th Cir.1965), cert. denied, 382 U.S. 984 , 86 S.Ct. 562 , 15 L.Ed.2d 473 (1966); Mann v. United States, 319 F.2d 404, 409 (5th Cir.1963), cert. denied, 375 U.S. 986 , 84 S.Ct. 520 , 11 L.Ed.2d 474 (1964); Chappell v. United States, 270 F.2d 274, 279-80 (1959); State v. Roberts, 88 Wash.2d 337 , 562 P.2d 1259, 1261-63 (1977); State v. Kroll, 87 Wash.2d 829 , 558 P.2d 173, 181-82 (1977); State v. Alcantara, 87 Wash.2d 393 , 552 P.2d 1049, 1050-51 (1976); State v. Odom, 83 Wash.2d 541 , 520 P.2d 152, 155-56 (1974).