Opinion
No. 50226-3-I.
Filed: February 17, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No. 01-1-08684-3. Judgment or order under review. Date filed: 03/25/2002.
Counsel for Appellant(s), Swanberg — Informational only (Appearing Pro Se) Doc # 930515, 1313 North 13th Ave, Walla Walla, WA 99362.
Susan F Wilk, Washington Appellate Project, 1305 4th Ave Ste 802 Seattle, WA 98101.
Counsel for Respondent(s), Endel R. Kolde, Attorney at Law King Co Prosecutor's Office, 500 4th Ave Ste 900, Seattle, WA 98104.
Where a trial court has issued a self-defense instruction in favor of the defendant in the crime of burglary in the first degree, a first aggressor instruction is also appropriate where, at the least, conflicting evidence exists as to whether the defendant's conduct precipitated or provoked the fight that supports his self-defense claim. Thus, the court did not err in giving a first aggressor instruction here.
We affirm.
FACTS
In order to pay off a drug debt, Swanberg decided to rob a jewelry store. Swanberg entered the jewelry store at night by breaking a window and once inside the store he smashed a display case with a rock. The owner of the store, Chuck Hohner, had an apartment at the back of the store and both he and his fianc` were in the store during this time. Hohner testified that he saw someone outside the front of the store on his video camera, heard glass breaking, and pressed a button to notify police officers of a break-in. Hohner armed himself with a loaded revolver, entered the main store area, observed Swanberg climbing through a window and then breaking a display case with a rock. Hohner testified that he approached Swanberg to restrain him and prevent further damage to the store.
Hohner approached Swanberg from behind, slid over a display case, put his hand on Swanberg's arm, and instructed him to stop. Swanberg hit Hohner in the face with the rock and broke his nose. Hohner testified that he nearly passed out from the pain and dropped the gun, but was able to maintain his hold on Swanberg while Swanberg hit him several times. Hohner testified that Swanberg reached for the dropped gun, but he was able to maintain his hold on Swanberg in an effort to keep him from the weapon. Hohner stated that Swanberg threatened to kill him. Hohner was barefoot and the shattered glass cut his feet as the two continued to struggle. In an attempt to stop the struggle, Hohner testified that he grabbed a broken plate and threatened to slit Swanberg's throat. Hohner told Swanberg to get on the ground and Swanberg complied. Swanberg then bounced back up, knocked the plate out of Hohner's hand, and attacked him again. Swanberg hit him several times in the head and raked his hand across Hohner's face, grabbing at his eyes and nose. Hohner pushed Swanberg off balance, put him in a choke hold, and testified that Swanberg `gave up.' Hohner succeeded in restraining Swanberg until police officers arrived. Hohner testified that he was scared throughout the entire incident and that Swanberg was taller, heavier, and younger than he. Hohner testified that his injuries included a broken nose, a strained neck, and cuts on his feet. Swanberg admitted that he intended to rob the jewelry store to pay off drug debts, but that he did not know anyone lived in the store. Swanberg testified that he felt someone grab him from behind and as he turned he was hit in the shoulder. He stated that as he turned he saw Hohner with a gun and feared for his life. Swanberg admitted punching Hohner in the face, but denied having a rock in his hand
Swanberg testified that Hohner and he wrestled in the store, but that he was primarily trying to restrain Hohner, asking him to stop fighting, and stating that he would give up. Swanberg said he tried to give up, but Hohner reached for a piece of broken glass and tried to strike him with it. He stated he wrestled with Hohner again, but when he tried to give up a second time, Hohner put him in a chokehold. Swanberg denied ever telling Hohner that he would kill him or that he ever tried to gain control of the gun. Swanberg testified that he was fearful of bodily harm and Hohner would not let him give up. Swanberg asserted that he could have easily overpowered Hohner but he was afraid of hurting him as he outweighed him by 30 pounds and was 20 years younger.
Based on his assault of the store owner, Swanberg was charged with first degree burglary in violation of RCW 9A.52.020. Swanberg argued that he acted in self-defense during the altercation with the store owner, thus his actions were lawful and did not constitute an assault. The trial court gave the jury both self-defense and first aggressor instructions. On two occasions, the court also allowed the jury to view the store's surveillance video from the incident, once during trial and once during jury deliberations.
The jury found Swanberg guilty as charged. This appeal timely followed. On appeal, Swanberg argues that he acted in self-defense and there was insufficient evidence to show that he assaulted the store owner, and that the trial court erred in giving a first aggressor jury instruction.
DISCUSSION 1. First Aggressor Instruction.
At trial, Swanberg argued that although he broke into another person's property he was entitled to argue self-defense. The State objected. The court allowed a self-defense instruction, reasoning that Swanberg was entitled to argue his theory of the case, but also agreed that the State could argue that Swanberg was the first aggressor. Swanberg objected, but the trial court issued a first aggressor instruction based on 11 Washington Pattern Jury Instructions: Criminal 16.04 (2d ed. 1994):
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 the defendant's acts and conduct provoked or commenced the fight, then self-defense is not available as a defense.
Instruction 10.
A challenged jury instruction is reviewed de novo and evaluated in the context of the instructions as a whole. Jury instructions are sufficient if they (1) permit each party to argue his or her theory of the case, (2) are not misleading, and (3) when read as a whole properly inform the trier of fact of the applicable law.
State v. Pirtle, 127 Wn.2d 628, 656, 904 P.2d 245 (1995).
Caruso v. Local Union 690, 107 Wn.2d 524, 529, 730 P.2d 1299 (1987). See also, State v. Williams, 96 Wn.2d 215, 634 P.2d 868 (1981) (the standard of review for jury instructions is whether the instructions are correct as a matter of law).
A first aggressor instruction instructs the jury that if it finds the defendant was the aggressor and created the necessity to act in self-defense, then the defendant cannot claim self-defense. The jury instruction here properly informed the jury of the applicable law and was not misleading. However, first aggressor instructions are not favored because they may eliminate the claim of self-defense.
State v. Riley, 137 Wn.2d 904, 910, 976 P.2d 624 (1999); 11 Washington Pattern Jury Instructions: Criminal 16.04 (2d ed. 1994) (WPIC).
State v. Kidd, 57 Wn. App. 95, 100, 786 P.2d 847 (1990) (citing State v. Wasson, 54 Wn. App. 156, 161, 772 P.2d 1039 (1989)).
An aggressor instruction is appropriate `[w]here 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 also appropriate `if there is conflicting evidence as to whether the defendant's conduct precipitated a fight.' However, the provoking act which justifies the aggressor instruction must be both intentional and one that a `jury could reasonably assume would provoke a belligerent response by the victim.'
Riley, 137 Wn.2d at 909-10 (instruction appropriate where evidence showed that the defendant pulled a gun on the victim first) (citing State v. Hughes, 106 Wn.2d 176, 191-92, 721 P.2d 902 (1986) (instruction appropriate where credible evidence showed that defendant fired gun first)).
Riley, 137 Wn.2d at 910 (citing State v. Davis, 119 Wn.2d 657, 666, 835 P.2d 1039 (1992)); State v. Cyrus, 66 Wn. App. 502, 508-09, 832 P.2d 142 (1992) (citing Hughes, 106 Wn.2d at 191-92).
State v. Arthur, 42 Wn. App. 120, 124, 708 P.2d 1230 (1985). See also, State v. Birnel, 89 Wn. App. 459, 473, 949 P.2d 433 (1998).
Swanberg asserts that Hohner's actions in approaching him from behind with a gun was the sole precipitating event that caused him to act in self-defense. The State responds, as it did below, that Swanberg's voluntary actions in smashing the window of the jewelry store, entering the store, and smashing a display case, were all voluntary actions which caused Hohner to act and provoke the fight.
We agree that Swanberg's initial actions in entering the store were intentional. There was sufficient evidence to show that Swanberg's acts provoked Hohner's armed approach. They were acts that a jury could reasonably conclude would provoke a belligerent response from the store owner.
Further, Hohner did not shoot or attack Swanberg upon first seeing him, although he might well have been justified in doing so. Rather, Hohner approached Swanberg, grabbed his arm, and tried to stop him from causing any more damage to the store. Swanberg then punched Hohner, breaking his nose. Swanberg then continued to attack Hohner, even after Hohner dropped the gun and came close to passing out. This was action likely to provoke a belligerent response. Hohner then began to wrestle Swanberg in an attempt to subdue him, and Swanberg violently resisted all of Hohner's attempts. Each party `is entitled to have the trial court instruct upon its theory of the case if there is evidence to support the theory.' In light of the self-defense instruction given at Swanberg's request, the absence of an `aggressor' instruction would have allowed the defendant to argue his escalating resistance was entirely self-defense and the State would have no instruction supporting its theory. We hold that there was credible evidence to support the State's theory that Swanberg provoked the need to act in self-defense, both initially when he entered the store and also when he continued to attack Hohner after his weapon had been dropped. At the least, conflicting evidence existed as to whether Swanberg's conduct precipitated or provoked the fight. Thus, the court did not err in giving the instruction.
See, e.g., State v. Martineau, 38 Wn. App. 891, 896, 691 P.2d 225 (1984) (homicide justifiable when committed in actual resistance of an attempt to commit a felony in dwelling or other place of abode in which the slayer is present).
Hughes, 106 Wn.2d at 191.
See, e.g., Cyrus, 66 Wn. App. at 508 (where officers had probable cause to effect an arrest, but defendant violently resisted, trial court did not err in giving aggressor instruction and allowing jury to determine whether his intentional resistance was reasonably likely to provoke the officers' increased use of force).
2. First Degree Burglary.
Assault is an element of first degree burglary, and the State bears the burden of proving each element of the crime charged beyond a reasonable doubt. Swanberg asserts that because he acted in self-defense his actions were lawful and there was insufficient evidence to show he assaulted Hohner. However, by challenging the sufficiency of the evidence, Swanberg admits the truth of the State's evidence and all reasonable inferences therefrom. This court must determine, after viewing the evidence in a light most favorable to the State, whether any rational trier of fact could have found the elements of the crime beyond a reasonable doubt.
City of Seattle v. Gellein, 112 Wn.2d 58, 61, 768 P.2d 470, 775 P.2d 448 (1989); RCW 9A.52.020(1)(b).
State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992); State v. Trepanier, 71 Wn. App. 372, 376, 858 P.2d 511 (1993).
State v. Townsend, 147 Wn.2d 666, 679, 57 P.3d 255 (2002) (citing State v. Green, 94 Wn.2d 216, 220-22, 616 P.2d 628 (1980)).
Hohner and Swanberg both described the events on the night in question. Although Swanberg's version of events was a bit different, Swanberg admitted to hitting Hohner in the face and hitting Hohner when he wrestled with him. On two occasions, the jury viewed the surveillance videotape which recorded events from the point where Swanberg entered the jewelry store until Hohner finally subdued him. Swanberg did not contest that he hit Hohner, but merely claimed the entire event was in self-defense. The court instructed the jury that it was a defense to the charge of burglary in the first degree that the force used was lawful and in self-defense. The court gave a self-defense instruction based on WPIC 17.02.
It provided in part:
The use of force upon or toward the person of another is lawful when used by a person who reasonably believes that he is about to be injured in preventing or attempting to prevent an offense against the person and when the force is not more than is necessary.
The person using the force may employ such force and means as a reasonably prudent person would use under the same or similar conditions as they appeared to the person, taking into consideration all of the facts and circumstances known to the person at the time of and prior to the incident.
Instruction 9.
Because the State does not contest the trial court's determination that self-defense is a legitimate defense to a charge of burglary in the first degree, we decline to consider whether the court properly gave a self-defense instruction. Further, we decline to discuss the differences between the `general rule' and 'arrest rule' of self-defense, as outlined in State v. Garcia, because the court gave a self-defense instruction based on the more stringent general rule. We also decline to determine which instruction applied in this case as neither party appeals the self-defense instruction. Nevertheless, even if self-defense is a legitimate defense to this crime, it is clear, after viewing the evidence in a light most favorable to the State, that any rational trier of fact could have found beyond a reasonable doubt that Swanberg assaulted Hohner and did not act in self-defense.
State v. Garcia, 107 Wn. App. 545, 549, 27 P.3d 1225 (2001) ('general rule' allows use of reasonable force in self-defense by person who reasonably believes that he or she is about to be injured, while `arrest rule' allows use of reasonable force to resist arrest only if person being arrested is actually about to be seriously injured or killed).
First, Swanberg's actions clearly constituted assault. Swanberg hit Hohner, breaking his nose and causing other injuries. Second, Swanberg continued to assault Hohner even after he was unarmed and even though Swanberg claimed he wanted to give up. Hohner attempted to subdue him throughout the incident, but Swanberg always violently resisted. Swanberg's actions do not appear to constitute such force and means as a reasonably prudent person would use under the same or similar conditions, knowing what Swanberg knew. Finally, as discussed above, the trial court properly gave the jury a first aggressor instruction. Thus, the jury rejected Swanberg's theory that he acted in self-defense.
Three definitions of assault are recognized in Washington: (1) an attempt, with unlawful force, to inflict bodily injury upon another [attempted battery]; (2) an unlawful touching with criminal intent [actual battery]; and (3) putting another in apprehension of harm whether or not the actor intends to inflict or is capable of inflicting that harm [common law assault].
State v. Wilson, 125 Wn.2d 212, 218, 883 P.2d 320 (1994) (quoting State v. Bland, 71 Wn. App. 345, 353, 860 P.2d 1046 (1993)).
We hold that the evidence, when viewed in a light most favorable to the State, supports the conclusion that Swanberg assaulted Hohner during the burglary and did not act in self-defense. Thus, substantial evidence existed to convict Swanberg of first degree burglary. Swanberg's claims to the contrary fail.
The decision of the trial court is affirmed.
BECKER and COX, JJ., concur.