STATE v. BLANTON, 51502-1-I (Wash.App. 12-29-2003)

No. 51502-1-IThe Court of Appeals of Washington, Division One.
Filed: December 29, 2003 UNPUBLISHED OPINION

Appeal from Superior Court of Island County. Docket No: 02-1-00116-6. Judgment or order under review. Date filed: 11/08/2002.

Counsel for Appellant(s), Charles Stuart III Hamilton, Attorney at Law, 2003 Western Ave Ste 600, Seattle, WA 98121-3126.

Counsel for Respondent(s), Gregory Marshall Banks, Attorney at Law, Island Co Pros Atty, PO Box 5000, Coupeville, WA 98239-5000.

Michael Henegen, Island County Prosecutors Office, PO Box 5000, Coupeville, WA 98239-5000.

PER CURIAM.

Lester Dane Blanton appeals his second degree assault conviction on two grounds. First, he argues that the trial court improperly excluded his testimony about specific prior violent acts of the victim. Second, he argues that the trial court erred when it defined the phrase `[g]reat bodily harm.’ We conclude that the testimony was properly excluded and the instructional error was harmless. Accordingly, we affirm Blanton’s conviction.

FACTS
In June 2002, Blanton, Phil Stumpf, Jacob Ogden (Jacob), and one unidentified individual, went to William Jesse Ogden’s (Ogden) home. They went to Ogden’s home to get a generator that they needed to work on Blanton’s car. The generator belonged to Jacob, who believed that Ogden had taken it without telling him.

When Ogden heard a knock on his front door he looked out of a window and saw Jacob. He then opened the door and invited Jacob in, saying nothing when the other three followed. Blanton and Ogden began to argue about the generator. The argument quickly intensified and Blanton made a preemptive strike. Blanton punched Ogden in the face, breaking his nose, and then wrestled him to the ground. Blanton struck based on a look in Ogden’s eyes. After approximately five minutes the fight ended. Blanton and his friends then left.

At trial, Blanton attempted to testify that he had heard that Ogden had assaulted a friend with a knife, assaulted a woman, and often carried a machete. The trial court sustained the State’s objection to this testimony. When the parties rested, Blanton asserted that pursuant to State v. Callahan, 87 Wn. App. 925, 943 P.2d 676 (1997), Blanton could testify as to the rumors he had heard in order to show his state of mind at the time he decided to strike Ogden. The State contended that this testimony violated ER 404 because it was offered to show that Ogden had a propensity for violence. The trial court ruled in favor of the State. The trial court adopted the defense’s proposed jury instructions, including 11 Washington Pattern Jury Instructions: Criminal 17.04, at 203 (2d ed. 1994) (WPIC), which states:

A person is entitled to act on appearances in defending himself or another, if that person believes in good faith and on reasonable grounds that he or another is in actual danger of great bodily harm, although it afterwards might develop that the person was mistaken as to the extent of the danger. Actual danger is not necessary for the use of force to be lawful.

Although neither party requested it, the trial court then defined great bodily harm:

Great bodily harm means bodily injury that creates a probability of death, or which causes significant serious permanent disfigurement, or that causes a significant permanent loss or impairment of the function of any bodily part or organ.

The jury convicted Blanton of second degree assault pursuant to RCW 9A.36.021(1)(c).

ANALYSIS
We review a trial court’s decision to exclude evidence for an abuse of discretion. State v. Land, 121 Wn.2d 494, 500, 851 P.2d 678 (1993). `A trial court abuses its discretion when it acts in a manner that is manifestly unreasonable or based on untenable grounds or reasons.’ Land, 121 Wn.2d at 500. Whether discretion is manifestly unreasonable or based on untenable grounds depends on `the comparative and compelling public or private interests of those affected by the order or decision and the comparative weight of the reasons for and against the decision one way or [an]other.’ State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775
(1971).

Blanton first argues that the trial court improperly excluded his testimony as to knowledge of prior acts of violence by the victim. He claims that the trial court should have allowed him to testify about rumors that he had heard to establish his reasonable fear of Ogden and the need to strike preemptively in self-defense.

Specific acts of violence by a victim may not be shown to establish that the victim acted in conformity with those acts. ER 404. But, where the defendant argues that he or she acted in self-defense, specific acts of violence by the victim may be offered to show that the defendant’s apprehension was reasonable. State v. Adamo, 120 Wn. 268, 270-71, 207 P. 7
(1922); State v. Cloud, 7 Wn. App. 211, 217, 498 P.2d 907 (1972).

The right to testify about specific past violent acts is a limited exception to ER 404. The defendant must show that he or she knew of the victim’s past acts of violence prior to committing the crime charged and that those past acts are not too remote. Adamo, 120 Wash. at 271. Moreover, the trial court may exclude the evidence of the victim’s past violent acts if he or she determines that its probative value is outweighed by the risk of prejudice, is cumulative, confusing, or misleading to the jury. ER 403.

The trial court did not abuse its discretion when it excluded Blanton’s testimony about Ogden’s prior acts of violence of which Blanton had no personal knowledge. The trial court had already allowed evidence of Ogden’s prior assault conviction. The evidence Blanton sought to introduce would have been cumulative, if not prejudicial. The trial court properly excluded the evidence.

Blanton next argues that the trial court erred when it defined the phrase `[g]reat bodily harm.’ Blanton claims that while he did use that phrase in a requested instruction, the trial court should not have defined it to the jury because the definition irreconcilably confuses the subjective standard used in evaluating self-defense defenses.

We review jury instructions to determine whether they are correct as a matter of law. State v. Edwards, 92 Wn. App. 156, 164, 961 P.2d 969
(1998) (citing State v. Williams, 96 Wn.2d 215, 634 P.2d 868 (1981)). Jury instructions must make the relevant legal standard manifestly apparent to the average juror. State v. LeFaber, 128 Wn.2d 896, 900, 913 P.2d 369 (1996). `A jury instruction misstating the law of self-defense amounts to an error of constitutional magnitude and is presumed prejudicial.’ LeFaber, 128 Wn.2d at 900. The first question must therefore be whether the great bodily harm definition made the relevant legal standard manifestly apparent to the average juror. If it failed to do so, the next question must be whether any prejudice created was harmless.

The great bodily harm definition offered here did not make the relevant legal standard manifestly apparent to the average juror. In State v. Corn, 95 Wn. App. 41, 975 P.2d 520 (1999), the Court of Appeals, Division Three addressed essentially identical jury instructions as those at issue here. The Corn jury instructions stated:

A person is entitled to act on appearances in defending herself if that person believes in good faith and on reasonable grounds that she is in actual danger of great bodily harm, although it afterwards might develop that the person was mistaken as to the extent of the danger. Actual danger is not necessary for a homicide to be justifiable.
. . . .

Great bodily harm means bodily injury that creates a probability of death, or which causes significant serious permanent disfigurement, or that causes a significant permanent loss or impairment of the function of any bodily part or organ. Corn, 95 Wn. App. at 49 (emphasis in original). After the jury had begun deliberations the prosecutor reconsidered the great bodily harm definition and `concluded it was incorrect.’ Corn, 95 Wn. App. at 50. The prosecutor asked that the trial court substitute it with the definition for great personal injury. Corn, 95 Wn. App. at 51. The trial court agreed to the substitution. Corn, 95 Wn. App. at 51. The defense counsel requested a mistrial. Corn, 95 Wn. App. at 51. The trial court reserved ruling. Corn, 95 Wn. App. at 51. When the jury returned a guilty verdict, the trial court granted Corn a new trial. Corn, 95 Wn. App. at 51.

On appeal, the prosecutor argued that the defense’s failure to object to the original instruction amounted to a waiver of any resulting error. Corn, 95 Wn. App. at 52. The prosecutor also argued that the substituted instruction cured any error. Corn, 95 Wn. App. at 52. The Court of Appeals disagreed. Corn, 95 Wn. App. at 53-54. The court held that the great bodily harm definition provided above undermined the subjective standard of self-defense, regardless of the correction, and that `Corn was therefore entitled to a new trial unless the error was found to be harmless beyond a reasonable doubt.’ Corn, 95 Wn. App. at 53-54 (citing State v. Walden 131 Wn.2d 469, 478, 975 P.2d 520 (1997)). The court held that the trial court had not abused its discretion in granting a new trial. Corn, 95 Wn. App. at 54.

In State v. Freeburg, 105 Wn. App. 492, 505-06, 20 P.3d 984 (2001), this court favorably noted the Corn court’s analysis of great bodily harm. Although the flawed instruction was not a deciding factor in Freeburg, this court acknowledged that the great bodily harm definition undermined the law of self-defense because a reasonable juror could use it to `reject self-defense without considering the defendant’s right to act on appearances.’ Freeburg, 105 Wn. App. at 507. The Freeburg court continued to write that `courts should . . . replace the phrase `great bodily harm’ with the phrase `great personal injury’ in the act on appearances instruction.’ Freeburg, 105 Wn. App. at 507. The great personal injury instruction at issue reads: Great personal injury means an injury of such a nature as to produce severe pain and suffering. It means an injury of a more serious nature than an ordinary striking with hands or fists. See State v. Painter, 27 Wn. App. 708, 714, 620 P.2d 1001
(1980).

Here, the great bodily harm definition undermined the law of self-defense. The trial court used nearly identically flawed jury instructions as at issue in Corn and discussed in Freeburg. Corn, 95 Wn. App. at 49; Freeburg, 105 Wn. App. at 503. Accordingly, the definition misstates the law of self-defense, amounts to an error of constitutional magnitude and must be presumed prejudicial.

`A constitutional error is harmless if the appellate court is convinced beyond a reasonable doubt that any reasonable jury would have reached the same result, despite the error.’ State v. Aumick, 126 Wn.2d 422, 430, 894 P.2d 1325 (1995). `To be entitled to a jury instruction on self-defense the defendant must produce some evidence demonstrating self-defense.’ Walden 131 Wn.2d at 473. The act on appearances instruction requires that a person believe in good faith and on reasonable grounds that he or she is in actual danger. WPIC 17.04. Blanton entered Ogden’s home with three friends. Blanton made a preemptive strike on Ogden in the midst of an argument, and based his claim of self-defense on a look in Ogden’s eyes. On this record, the threat to Blanton, if any, was so minimal that it does not support a conclusion that he had a good faith belief based on reasonable grounds that he was in actual danger of great personal injury. Because no reasonable jury could have found that Blanton acted in self-defense, we hold that the trial court’s error was harmless.

Accordingly, we affirm Blanton’s conviction.