No. 27444-6-III.The Court of Appeals of Washington, Division Three.
January 7, 2010.
Appeal from a judgment of the Superior Court for Stevens County, No. 08-1-00152-5, Rebecca M. Baker, J., entered August 19, 2008.
Affirmed by unpublished opinion per Korsmo, J., concurred in by Kulik, C.J., and Brown, J.
KORSMO, J.
Christopher Curley challenges his Stevens County convictions for second degree assault and second degree unlawful possession of a firearm. He alleges that the trial court erred by limiting testimony and instructing the jury, and that his counsel erred by not raising a challenge to the unlawful possession charge. We find no error and affirm.
BACKGROUND
The charges arose after Mr. Curley fired three shots from a .45 handgun at a neighbor, Tim Moore, who was riding a motorcycle on Curley’s property in rural Stevens County. There was bad blood between the neighbors. Moore had previously accused Curley of stealing firewood. Curley believed that Moore and his father were trying to run him off his property. He also believed that the younger Moore had vandalized his bulldozer and had threatened to burn down Curley’s cabin. Curley also alleged that in 2006, Moore had dragged him from a pickup truck and beaten him. None of these incidents, all of which Moore denied, were reported to the police.
When he heard the motorcycle, Mr. Curley went outdoors with the handgun at his side. According to Curley, Moore saw the gun and said, “Oh yeah.” Curley believed Moore had the same look in his eye as he did when he had dragged Curley from the truck. Curley fired three shots in Moore’s direction; Moore left the area. Both men called for law enforcement assistance. After questioning both men, deputies arrested Mr. Curley.
The charges were tried to a jury. In the course of his testimony, Mr. Curley told jurors that he was not aware that his firearm rights had been revoked by his 1994 domestic violence conviction for assaulting his wife. He had purchased guns without challenge despite the conviction.
The court refused to let the defense call attorney Robert Simeone to testify about an easement dispute between Curley and the Moores. Simeone would have testified that Curley had an easement across the Moore property, but the Moores did not have an easement across Curley’s land. The trial court found the evidence was redundant and not helpful to the trier of fact.
The trial court also refused to give a self-defense instruction. The jury convicted Mr. Curley as charged. He was sentenced to 42 months in prison. He timely appealed to this court.
ANALYSIS
This appeal challenges the trial court’s rulings on Mr. Simeone’s testimony and the self-defense instruction. Mr. Curley also argues that his due process rights were violated by the unlawful possession charge and that his attorney erred by not moving to dismiss that count.[1] We will address the arguments in the order stated.
Excluded Testimony
The trial court excluded the testimony of attorney Simeone on the basis that it was redundant to Mr. Curley’s testimony and was not helpful to the jury. A trial court has broad discretion in deciding whether or not to admit evidence. Kappelman v. Lutz, 167 Wn.2d 1, 6, 217 P.3d 286 (2009); State v. Swan, 114 Wn.2d 613, 658, 790 P.2d 610 (1990), cert. denied, 498 U.S. 1046 (1991). A trial court abuses its discretion when it acts on untenable grounds or for untenable reasons. State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971).
Here, the trial court concluded that evidence of the easement dispute between the Moores and Mr. Curley was not helpful to the jury. That was a tenable basis for excluding the evidence. Mr. Curley testified that there was a dispute. Additional evidence was not necessary, particularly where the issue for the jury to decide was whether or not Mr. Curley assaulted Mr. Moore. The status of the land was not relevant.
The trial court did not abuse its considerable discretion in this area.
Self-Defense Instruction
Mr. Curley also challenges the decision not to give a self-defense instruction. Jury instructions are sufficient if they correctly state the law, are not misleading, and allow the parties to argue their respective theories of the case State v. Dana, 73 Wn.2d 533, 536-537, 439 P.2d 403
(1968). The trial court also is granted broad discretion in determining the wording and number of jury instructions Petersen v. State, 100 Wn.2d 421, 440, 671 P.2d 230
(1983).
Instructions on self-defense are required when there is evidence that a reasonable person in the defendant’s circumstances would be justified in using force to prevent harm to himself, others, or his property. RCW 9A.16.020(3). There must be evidence to support a subjective, good-faith belief that force was necessary, and the force used must have been objectively reasonable. State v. Walker, 136 Wn.2d 767, 773, 966 P.2d 883 (1998).
The trial court concluded here that there was no history of use of weapons between the parties and therefore Mr. Curley did not have a reasonable belief that he was in danger, nor was use of deadly force necessary. We agree.
There was no evidence that Mr. Moore’s trespass on a motorcycle presented an immediate threat justifying the use of force, let alone potentially deadly force. There was no evidence that Mr. Moore was trying to run Mr. Curley down with the motorcycle or otherwise was threatening his physical safety. Mr. Curley justified defending himself by the “look” in Mr. Moore’s eyes. The look in one’s eyes does not objectively justify the use of force.
Nor was the need to defend the property from trespass sufficient justification to shoot at the intruder. This court has previously determined that deadly force is not justified to eject a nonviolent trespasser. State v. Murphy, 7 Wn. App. 505, 514, 500 P.2d 1276, review denied, 81 Wn.2d 1008 (1972). There simply was no evidence presented here that any force was necessary to prevent a malicious trespass. There most certainly was no evidence justifying use of deadly force.
The trial court correctly concluded that there was no basis for any self-defense instruction.
Due Process
Mr. Curley next argues that his due process rights were violated when he was charged with unlawful possession of a firearm. He contends that he was not given required notice that his 1994 misdemeanor conviction precluded him from possessing firearms. This issue was never presented to the trial court and, unsurprisingly, the record is inadequate to resolve the claim.
RCW 9.41.040(2)(a)(i) provides that a person convicted of fourth degree assault against a family member is ineligible to possess a firearm. RCW 9.41.047(1) requires a judge to notify an offender orally and in writing that he may not possess a firearm until a court restores the right to do so. When a trial court fails to notify an offender of the firearms disqualification and the offender was misled and prejudiced by the error, Washington courts have found that the offender’s due process rights have been violated. The typical remedy is to dismiss a prosecution for unlawful possession of a firearm E.g., State v. Moore, 121 Wn. App. 889, 91 P.3d 136
(2004), review denied, 154 Wn.2d 1012 (2005) State v. Leavitt, 107 Wn. App. 361, 27 P.3d 622
(2001).
Mr. Curley argues that his testimony puts this case within those fact patterns. It does not. First, there is no evidence that Mr. Curley was not advised that he was prohibited from possessing guns. He simply says he did not know that he could not possess guns. While it may be possible to infer the court did not advise him, that is not the only inference possible from his testimony. Furthermore, no written documents from the 1994 proceeding are before this court. We do not know what those documents may have said. There also is no record of the actual sentencing proceedings in that case, so we have no record of what the trial court may have told Mr. Curley. We do not even know the date of the 1994 offense. The notification requirement did not exist before July 1, 1994. See
Laws of 1994, 1st Spec. Sess., ch. 7, § 404. It is possible that Mr. Curley was not entitled to notification. There also is no evidence that Mr. Curley was misled by the trial court. He has not alleged that he would have forsaken gun ownership if he had known of the prohibition.
For all of these reasons, there is simply no factual basis for any court to have found Mr. Curley’s due process rights were violated in 1994.[2] The argument is without merit.
Ineffective Assistance
Mr. Curley also argues that his counsel was ineffective for failing to raise the due process argument at or before trial. This argument founders for the simple reason that the record does not reflect that counsel was aware of a factual basis for bringing the motion.
The standards of review of a claim of ineffective assistance of counsel are well understood. The Sixth Amendment guarantees the right to counsel. More than the mere presence of an attorney is required. The attorney must perform to the standards of the profession. Counsel’s failure to live up to those standards will require a new trial when the client has been prejudiced by counsel’s failure. State v. McFarland, 127 Wn.2d 322, 334-335, 899 P.2d 1251 (1995). In evaluating ineffectiveness claims, courts must be highly deferential to counsel’s decisions. A strategic or tactical decision is not a basis for finding error. Strickland v. Washington, 466 U.S. 668, 689-691, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). To prevail on a claim of ineffective assistance, the defendant must show both that his counsel erred and that the error was so significant, in light of the entire trial record, that it deprived him of a fair trial. Id. at 690-692.
Because we do not know if there was a factual basis for bringing the motion, let alone whether counsel knew of the necessary facts, there is no evidentiary basis for finding that counsel performed ineffectively. Accordingly, the ineffective assistance claim likewise is without merit.
CONCLUSION
The judgment is affirmed.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
Kulik, A.C.J. and Brown, J., concur.