No. 33586-7-II.The Court of Appeals of Washington, Division Two.
October 31, 2006.
Appeal from a judgment of the Superior Court for Pierce County, No. 05-1-00211-7, Sergio Armijo, J., entered July 1, 2005.
Reversed and remanded by unpublished opinion per Armstrong, J., concurred in by Bridgewater, J.; Hunt, J., dissenting.
Counsel for Appellant(s), Reed Manley Benjamin Speir, Attorney at Law, 3800 Bridgeport Way W Ste A23, University Place, WA, 98466-4495.
Counsel for Respondent(s), Kathleen Proctor, Pierce County Prosecuting Atty Ofc, 930 Tacoma Ave S Rm 946, Tacoma, WA, 98402-2171.
ARMSTRONG, J.
James Calvin Osborne appeals his conviction of first degree assault, arguing that (1) the State failed to disprove his self-defense claim, (2) the trial court should have instructed on second degree assault as a lesser degree offense, and (3) the trial court should not have instructed that if Osborne was the “first aggressor,” he had no right to defend himself. We agree with Osborne that the trial court should have instructed on second degree assault, and because the error was not harmless, we reverse and remand.
FACTS
James Osborne and his girlfriend, Audra Nagel, spent the night of January 11 at Thomas Zachary Head’s trailer. Kevin Florom and Rhonda Rawlings also stayed at the trailer, and others frequently spent the night there. Osborne and Florom were in Florom’s bedroom when James Roberts arrived at the trailer. After Nagel let him in, Roberts entered Florom’s bedroom.[1]
Florom testified that when Roberts entered the bedroom, Osborne and Roberts immediately began to threaten each other, including threats to kill. Roberts reached behind his back in a way that made Florom think he had a weapon.[2] Osborne grabbed the machete from the floor and hit Roberts in the head with it. Florom got between the two men to stop Osborne from hitting Roberts again. He then helped Roberts exit the trailer.
Rawlings testified that she heard a commotion and saw Osborne strike Roberts in the head with the machete. Roberts was pleading with Osborne to let him go; she also pleaded with Osborne to let Roberts go. Osborne said he was going to kill Roberts.
Roberts testified that Florom called him that morning and asked him to come to the trailer. When he arrived, Roberts entered Florom’s room and saw Osborne holding a machete. Roberts said he was there to see Florom and asked Osborne to put the machete down. Roberts had no weapon and neither said nor did anything to suggest that he had one. Osborne rushed at him and grabbed him by the waist. During the ensuing struggle, Roberts felt a painful blow to his head, but he did not see who struck him. He sustained a 15-centimeter laceration on the top of his skull and a skull fracture.
Osborne testified that to provide security for drug transactions, he locked the door to Florom’s room by sliding the machete through the molding of the door, blocking it from opening inward. He unbarred the door to allow Nagel to exit the room, then re-barred it. When Nagel announced that someone was at the door, he unbarred it again. Osborne was holding the machete in his hand to re-bar the door when Roberts entered. Roberts began threatening Osborne and told him to drop the machete. Osborne refused to drop it because he had heard that Roberts had a gun. When Roberts reached behind his back, Osborne rushed him, intending to wrap his arms around Roberts to prevent him from drawing a weapon. After a struggle, Osborne exited the trailer and left the trailer park. Osborne did not realize that he had hit Roberts in the head with the machete until he returned to the park later that day.
Osborne also testified about earlier difficulties between him and Roberts. In 2000, Osborne took two vehicles from Roberts as part of a drug transaction. Roberts later held Osborne at gunpoint while an associate severely beat Osborne, damaging his eye. Several weeks before the January 11 assault, Roberts threatened Osborne with a knife and told him not to go to Florom’s trailer because he had been harassing Rawlings. Osborne testified that he was unhappy that Roberts was giving him orders and disrespecting him in front of Nagel and others, so the following day Osborne confronted Roberts in a parking lot. Roberts again threatened Osborne with a knife. But when Osborne drew his own knife and challenged Roberts to a fistfight, Roberts left.
The State charged Osborne with first degree assault. The jury convicted him of first degree assault and found that he was armed with a deadly weapon at the time of the assault.
ANALYSIS I. Sufficiency of the Evidence
Osborne argues that the State presented insufficient evidence to disprove his claim of self-defense beyond a reasonable doubt.
Evidence is sufficient to support a conviction if, after reviewing the evidence in the light most favorable to the State, any rational trier of fact could have found guilt beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). In considering a defendant’s claim of insufficient evidence, we accept the State’s evidence and draw all reasonable inferences from the evidence in favor of the State. Salinas, 119 Wn.2d at 201.
The State bears the burden of proving all elements of a crime beyond a reasonable doubt. State v. Teal, 152 Wn.2d 333, 337, 96 P.3d 974 (2004). Because self-defense is an affirmative defense, the defendant may raise the issue by setting forth some evidence that he was defending himself at the time of the alleged assault. State v. Walden, 131 Wn.2d 469, 473, 932 P.2d 1237
(1997). Once the defendant offers such evidence, the burden shifts to the State to prove beyond a reasonable doubt that the defendant had no right to defend himself under the circumstances. Walden, 131 Wn.2d at 473.
Osborne testified about his prior encounters with Roberts, that he had heard Roberts carried a firearm, and that Roberts reached behind his back as if to draw a weapon. This was sufficient to raise the self-defense issue.
But the State also presented sufficient evidence for the jury to find beyond a reasonable doubt that Osborne did not have the right to act in self-defense. Florom testified that Osborne armed himself with the machete after Roberts entered the room, rather than merely holding it before Roberts entered. He also testified that he had to jump between Osborne and Roberts to prevent Osborne from hitting Roberts a second time.
Roberts testified that he had no weapon. Moreover, he neither said nor did anything to suggest that he had a weapon. Both Roberts and Osborne testified that Roberts repeatedly asked Osborne to put down the machete and that Osborne refused. Rawlings testified that she and Roberts were pleading with Osborne to let Roberts leave the trailer and that she heard Osborne threaten to kill Roberts.
Viewing the evidence in the light most favorable to the State, a reasonable juror could find that the State met its burden of disproving self-defense beyond a reasonable doubt.
II. Lesser Included Offense Instruction
Osborne next contends that the trial court should have instructed the jury on assault in the second degree as an inferior degree crime.
We review a trial court’s refusal to give a requested instruction, when based on lack of factual support, for an abuse of discretion. State v. Lucky, 128 Wn.2d 727, 731, 912 P.2d 483
(1996), overruled on other grounds by State v. Berlin, 133 Wn.2d 541, 947 P.2d 700 (1997). In considering whether the trial court erred in rejecting the instruction, we view the evidence in the light most favorable to the party who requested the instruction. State v. Fernandez-Medina, 141 Wn.2d 448, 455-56, 6 P.3d 1150
(2000).
Osborne contends that the evidence supports several interpretations of how Roberts received the injury to his head, including that Roberts received a glancing blow from either the machete or another object while Osborne and Roberts struggled.
The court should instruct on an inferior degree offense when:
(1) the statutes for both the charged offense and the proposed inferior degree offense “proscribe but one offense;” (2) the information charges an offense that is divided into degrees, and the proposed offense is an inferior degree of the charged offense; and (3) there is evidence that the defendant committed only the inferior offense.
Fernandez-Medina, 141 Wn.2d at 454 (quoting State v. Peterson, 133 Wn.2d 885, 891, 948 P.2d 381 (1997)). To meet the third prong, it is not enough that the jury may disbelieve the evidence pointing to guilt. Rather, the evidence must affirmatively establish the defendant’s theory of the case. Fernandez-Medina, 141 Wn.2d at 456. For example, in Fernandez-Medina, where the defendant presented an alibi defense to a charge of first degree assault, but also presented expert testimony that a “click” heard from a gun during the assault could have been a noise other than pulling the trigger, the defendant was entitled to an instruction on second degree assault. Fernandez-Medina, 141 Wn.2d at 451-52.
Here, the State concedes that the first two prongs are met: first degree assault and second degree assault are but “one offense,” and second degree assault is an inferior degree of first degree assault. Br. of Respondent at 9. Thus, only the factual prong is at issue.
Osborne’s testimony supports a second degree assault. He said that he rushed Roberts because he believed Roberts had a gun. He intended to immobilize Roberts. He carried the machete but he was not aware that he had hit Roberts with it until later that day. A person commits second degree assault if without the intent to inflict great bodily harm, he assaults another and recklessly inflicts substantial bodily harm. Great bodily harm is “bodily injury which creates a probability of death, or which causes serious permanent disfigurement, or which causes a significant permanent loss or impairment of the function of any bodily part or organ.” RCW 9A.04.110(4)(c). Substantial bodily harm is “bodily injury which involves a temporary but substantial disfigurement, or which causes a temporary but substantial loss or impairment of the function of any bodily part or organ, or which causes a fracture of any bodily part.” RCW 9A.04.110(4)(b). The jury could have rejected Osborne’s self-defense claim, reasoning that he used excessive force under the circumstances. But consistent with this conclusion, the jury could have concluded that Osborne did not attack Roberts with the intent to cause great bodily harm; rather, he attacked with excessive force and thereby recklessly inflicted substantial harm.
We conclude that the trial court should have instructed on second degree assault, and its failure to do so was harmful error. See State v. Parker, 102 Wn.2d 161, 163-64, 683 P.2d 189
(1984) (citing State v. Young, 22 Wash. 273, 276-77, 60 P. 650
(1900)). Because we are remanding, we address only those issues likely to arise on re-trial.
III. “First Aggressor” Instruction
Osborne assigns error to jury instruction 14,[3] the “first aggressor” instruction. Br. of Appellant at 19. He argues that there was insufficient evidence to support the instruction because he was already holding the machete in his hand, pointing down, when Roberts entered Florom’s room.
Jury instructions are sufficient if they are supported by substantial evidence, allow the parties to argue their theories of the case and, when read as a whole, properly inform the jury of the applicable law. State v. Clausing, 147 Wn.2d 620, 626, 56 P.3d 550 (2002). Whether jury instructions are adequate is a question of law reviewed de novo. Clausing, 147 Wn.2d at 626-27.
Where there is credible evidence from which a jury can reasonably determine that the defendant provoked the need to act in self-defense, an aggressor instruction is appropriate. State v. Riley, 137 Wn.2d 904, 909-10, 976 P.2d 624 (1999). An aggressor instruction is appropriate where there is conflicting evidence as to whether the defendant’s conduct precipitated the fight. Riley, 137 Wn.2d at 910. Although the trial court should exercise caution in giving the first aggressor instruction, Riley, 137 Wn.2d at 910 n. 2, the evidence here was sufficient to show that Osborne provoked the dispute. He was either holding the machete when Roberts walked into the room or he picked it up immediately thereafter. More importantly, both Osborne and Roberts testified that Roberts asked Osborne several times to put the machete down but Osborne refused. Given the violent history between the two, the jury could conclude that Osborne’s refusal to set the machete down provoked a belligerent response from Roberts (reaching back as if for a gun).
The trial court did not err in giving the first aggressor instruction.
Reversed and remanded.
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 pursuant to RCW 2.06.040, it is so ordered.
BRIDGEWATER, P.J., concur.
No person may, by any intentional act reasonably likely to provoke a belligerent response, create a necessity for acting in self defense and thereupon use, offer or attempt to use force upon or toward another person. Therefore, if you find beyond a reasonable doubt that the defendant was the aggressor, and that defendant’s acts and conduct provoked or commenced the fight, then self-defense is not available as a defense.
Clerk’s Papers (CP) at 59. This follows 11 Washington Pattern Jury Instructions: Criminal 16.04 (2d ed. 1999).
Hunt, J.
I respectfully dissent. Applying the liberal and deferential standard of review, I would find no abuse of trial court discretion in denying Osborne’s request to instruct the jury on second degree assault as a lesser included offense of first degree assault because, in my view, the evidence does not affirmatively show that Osborne committed only this inferior offense. See State v. Fernandez-Medina, 141 Wn.2d 448, 454, 6 P.3d 1150 (2000).
Osborne testified that (1) he thought Roberts was going to pull a gun and kill him; (2) although Roberts told Osborne to put down the machete in his hand, Osborne lunged at Roberts with the machete still in his hand and “landed on him”; (3) the machete hit Roberts in the head, injuring him; (4) in so doing, Osborne did not intend to kill Roberts or to inflict substantial or great bodily harm; (5) rather, Osborne was trying “to prevent a weapon from being drawn” and “to buy . . . time to get out of the trailer.” Report of Proceedings at 395. These facts, even taken in the light most favorable to Osborne, as Osborne himself described, do not tend to show that Osborne used only excessive force and that he only recklessly, rather than intentionally, inflicted substantial bodily harm on Roberts.
I would hold, therefore, that the trial court did not abuse its discretion in refusing to instruct the jury on second degree assault.
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