Opinion
No. 34247-2-II
Filed: May 7, 2007
In J.J.H.'s appeal from his adjudication of second degree assault, we remanded for the juvenile court to enter findings of fact and conclusions of law in support of the adjudication. We now consider, based on these findings of fact, whether the court misapplied the lawful use of force defense. We conclude that it did not and affirm.
A violation of RCW 9A.36.021(1)(a).
Facts
As we set the facts out explicitly in the unpublished opinion filed on February 7, 2007, remanding for the juvenile court to make the necessary findings, we repeat them here only as necessary to our analysis.
Analysis
Lawful Use of Force Defense
J.J.H. argues that the juvenile court made several errors in considering his self-defense claim. He argues that the court failed to decide first if he was entitled to act in defense of himself or others and, instead, focused on the amount of force used and the inequality between the juveniles' injuries and Jason Pumphrey's.
RCW 9A.16.020 defines the lawful use of force:
The use, attempt, or offer to use force upon or toward the person of another is not unlawful in the following cases:
. . . .
(3) Whenever used by a party about to be injured, or by another lawfully aiding him or her, in preventing or attempting to prevent an offense against his or her person . . . in case the force is not more than is necessary.
RCW 9A.16.010 defines "necessary": "(1) `Necessary' means that no reasonably effective alternative to the use of force appeared to exist and that the amount of force used was reasonable to effect the lawful purpose intended."
In State v. Walden, our Supreme Court explained the law of self-defense:
To be entitled to a jury instruction on self-defense, the defendant must produce some evidence demonstrating self-defense; however, once the defendant produces some evidence, the burden shifts to the prosecution to prove the absence of self-defense beyond a reasonable doubt. See State v. Janes, 121 Wn.2d 220, 237, 850 P.2d 495, 22 A.L.R.5th 921 (1993) (defendant bears initial burden of producing evidence killing occurred in circumstances amounting to self-defense); State v. Acosta, 101 Wn.2d 612, 619, 683 P.2d 1069 (1984) (State bears burden of disproving self-defense in second degree assault prosecution).
Evidence of self-defense is evaluated "from the standpoint of the reasonably prudent person, knowing all the defendant knows and seeing all the defendant sees." Janes, 121 Wn.2d at 238 (citing [ State v.] Allery, 101 Wn.2d [591,] 594[, 682 P.2d 312 (1984)]). This standard incorporates both objective and subjective elements. The subjective portion requires the jury to stand in the shoes of the defendant and consider all the facts and circumstances known to him or her; the objective portion requires the jury to use this information to determine what a reasonably prudent person similarly situated would have done. Janes, 121 Wn.2d at 238.
131 Wn.2d 469, 473-74, 932 P.2d 1237 (1997). "[T]he general rule in Washington is that reasonable force in self-defense is justified if there is an appearance of imminent danger, not actual danger itself." State v. Bradley, 141 Wn.2d 731, 737, 10 P.3d 358 (2000).
J.J.H. argues that the juvenile court's focus on the seriousness of the injuries was improper because the other juveniles just as likely caused Pumphrey's injuries. Simply that C.E.M. or J.T.C. did not act with lawful use of force should not preclude him from asserting such a defense. He claims the trial court improperly employed an all or none approach to the defense.
He also argues that the juvenile court erred in failing to consider that Pumphrey was the initial aggressor. He cites State v. Heath, 35 Wn. App. 269, 271, 666 P.2d 922, review denied, 100 Wn.2d 1031 (1983), to argue that Pumphrey was the initial aggressor. But Heath is inapplicable. The question there was whether Heath was entitled to a self-defense instruction when he was the initial aggressor. The court here did not preclude Hopkins from claiming self-defense and considered his defense.
Lastly, he argues that the juvenile court improperly found that he was not entitled to defend himself because he had a duty to retreat and to get the others to retreat. He argues that he had no such duties and thus the court misapplied the law. See State v. Redmond, 150 Wn.2d 489, 493, 78 P.3d 1001 (2003) (there is no duty to retreat when a person is assaulted in a place where he has a right to be).
The juvenile court's oral ruling makes clear that the court considered and rejected the self-defense claim.
I have to take a look at was the amount of force reasonable; was it more than necessary? There is nobody else of that group of people that had any kind of injuries that were reported that were anything more than maybe a split lip, maybe a redness around the neck.
We don't have mutual combat here, because we don't have two people going at each other and both ending up with about the same kind of injuries. We don't have defense of self or others when we have a witness who said she saw all three of the boys beating up on him at one point. And we don't — we go far beyond force when the Defendant hit the victim in the face instead of pulling everybody away. This isn't going to happen because we're all leaving now. We're all leaving at top speed. They were all capable of walking. They were walking down the street that night.
I have to look at whether there's accomplice liability. Clearly, all were involved in this fight and this force and it was — it was much more than was reasonable. And the Defendant did more than step in to protect [J.T.C.]. And when all get to swinging and this kind of victim ends up with these kinds of injuries, it's much beyond a reasonable force. And I cannot believe [J.J.H.'s] story that he was not involved, or he didn't see anything, but yet when he went — he went up to the victim lying on the ground and asked him if he was okay.
In the period of time that he didn't know what was going on or didn't see anything, he could have gotten to McDonald's. And I can't believe that none of these people didn't have a cell phone and called 911 if he really was uninvolved. I don't believe that story at all.
Report of Proceedings at 170-71.
Additionally, the juvenile court made the following findings of fact:
2. . . . After Pumphrey pulled into the Schuck's parking lot, he got out of his car and approached J.T.C. and yelled at him. At this point, J.J.H (Respondent) got involved in the altercation, telling Pumphrey, "it ain't gonna happen, cause he is only 14". At this point, Pumphrey may have pushed J.J.H. (Respondent), and in response J.J.H. (Respondent) punched Pumphrey.
3. Shortly thereafter, J.T.C., C.E.M. and J.J.H. (Respondent) surrounded Mr. Pumphrey and were all punching him in the head and body. At this point, the altercation became three-on-one with J.J.H. (Respondent), C.E.M. and J.T.C. acting in concert and as accomplices to each other in their assault against Mr. Pumphrey.
4. At one point during the altercation, in an effort to get the beating by the three boys to end, Mr. Pumphrey was able to get J.J.H. (Respondent) into a headlock. However, the headlock of J.J.H. (Respondent) lasted no longer than 30 seconds. During this short period of time that Pumphrey had J.J.H. (Respondent) in a headlock, he attempted to strike J.J.H. (Respondent) in the head.
5. At some point during the on-going altercation, C.E.M. threw a bottle toward Mr. Pumphrey.
6. At one point during the altercation, J.J.H. (Respondent) was able to walk over and pick up Mr. Pumphrey and throw him to the ground. While Mr. Pumphrey was lying on the ground immobile, C.E.M. approached him and kicked him in the head and face multiple times.
7. Other than the initial push of J.T.C., during the altercation, Mr. Pumphrey never again touched or struck J.T.C.
8. Mr. Pumphrey never touched or struck C.E.M. during the entire altercation.
9. Mr. Pumphrey sustained injuries which indicate that substantial force was used upon him and that force resulted in substantial bodily injury including a fractured cheekbone (a fracture of the left zygomatic arch), a fracture of the T-11 vertebrae in his back, fractures to two of his ribs, and broken teeth. Mr. Pumphrey also suffered contusions and abrasions to his elbows and knees, a concussion, and an injury to the back of his head. Dr. Chris Jackson testified that based upon the nature of the injuries presented by Mr. Pumphrey, one impact could not have caused all of the injuries he observed. Mr. Pumphrey was required to spend several days in the hospital.
10. Neither J.T.C. nor C.E.M. sustained any substantial injuries. J.J.H. (Respondent) may have received minor redness to his face or neck, and may have suffered a split lip. C.E.M., J.T.C., and J.J.H. (Respondent) were able to either walk away or ride their bikes away from the incident and did not seek medical attention.
11. At no point during or after the incident did J.T.C., C.E.M. or J.J.H. (Respondent) contact Law Enforcement.
12. The testimony of J.J.H. (Respondent) as to how the events unfolded, and that he was not involved, and didn't see anything during the incident, was not credible.
13. This Court finds J.T.C., C.E.M., and J.J.H. (Respondent) intentionally assaulted Mr. Pumphrey, and beyond a reasonable doubt that the force they used was excessive and not done for the purpose of self defense and/or the defense of others.
Second Suppl. Clerk's Papers at 42-44 (citations omitted).
The juvenile court did not abuse its discretion in finding that the State had proven beyond a reasonable doubt that J.J.H. did not act in self-defense. The court assessed the witnesses' credibility, disbelieved much of J.J.H.'s explanation, and found that self-defense or defense of others did not justify the unnecessary assaults. The court's findings of fact support its conclusion that none of the three juveniles acted in self-defense and none of the juveniles responded to Pumphrey's threats with reasonable force. The record supports the juvenile court's conclusion that J.J.H. intentionally assaulted Pumphrey and thereby recklessly inflicted substantial bodily injuries.
We affirm.
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.
We concur:
BRIDGEWATER, P.J.
ARMSTRONG, J.