Opinion
No. 37003-4-II.
February 24, 2009.
Appeal from a judgment of the Superior Court for Clark County, No. 07-1-00175-1, Robert L. Harris, J., entered October 25, 2007.
Affirmed by unpublished opinion per Penoyar, A.C.J., concurred in by Bridgewater and Quinn-Brintnall, JJ.
Peter Petersen appeals from his conviction of second degree assault, domestic violence, challenging the sufficiency of the evidence, claiming that the trial court erred in giving an aggressor instruction, and claiming that trial counsel denied him his right to effective assistance in proposing WPIC 17.04, an intent instruction. We affirm.
A violation of RCW 9A.36.021(1)(a) and RCW 10.99.020(5)(b).
11 Washington Practice: Washington Pattern Jury Instructions: Criminal 17.04, at 262 (3d ed. 2008) (WPIC).
Facts
On January 24, 2007, after arriving home from work, Petersen had an argument with his wife, Dana, that escalated into a 911 call and charges against Petersen for second degree assault. A jury found him guilty and by special verdict that the offense involved domestic violence. The court sentenced Petersen to a 90-day standard range sentence, allowing him to serve it while on work release. He appeals.
Analysis
I. Sufficiency of the Evidence
Petersen first argues that there was insufficient evidence to support his conviction because he presented evidence that he acted in self defense and the State failed to disprove it beyond a reasonable doubt. He explains that when he went into the bedroom to retrieve his wallet and keys, Dana lunged toward him, he put up his arm to protect himself, and she ran into his hand.
To convict Petersen of second degree assault, the State had to prove the following elements:
(1) That on or about the 24th day of January, 2007, the defendant intentionally assaulted Dana Petersen;
(2) That the defendant thereby recklessly inflicted substantial bodily harm on Dana Petersen; and
(3) That the acts occurred in the State of Washington.
Clerk's Papers (CP) at 74; Instr. 7. Additionally, the State had to disprove Petersen's claim that he acted in self defense.
It is a defense to a charge of assault that the force used was lawful as defined in this instruction.
The use of force upon or toward the person of another is lawful when used by a person who reasonably believes that he or she 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.
The State has the burden of proving beyond a reasonable doubt that the force used by the defendant was not lawful. If you find that the State has not proved the absence of this defense beyond a reasonable doubt, it will be your duty to return a verdict of not guilty.
CP at 81; Instr. 14.
When facing a challenge to the sufficiency of the evidence, we ask whether, after viewing the evidence in a light most favorable to the State, any rational trier of fact could have found the essential elements of the charged crime beyond a reasonable doubt. State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980). Because credibility determinations are for the trier of fact and are not subject to review, State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990), we defer to the trier of fact on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence. State v. Walton, 64 Wn. App. 410, 415-16, 824 P.2d 533 (1992).
Here, the State presented ample evidence to support the jury's verdict.
Deputy James Payne testified that he responded to the 911 call and that while standing with Petersen in his driveway, Petersen volunteered that he had backhanded his wife, explaining that he asked her a question about some frozen food and when she came after him, he hit her in the face.
Eric Petersen testified to hearing his father and step-mother arguing, his step-mother going into the bedroom, and a popping sound soon afterward. In an earlier statement to the police, Petersen stated that he saw his father kick down the bedroom door.
Dana Petersen testified that she and Petersen were arguing, that he pushed her back a couple of times, and that she then went into the bedroom and locked the door. She testified that he stood outside the door arguing with her and then kicked down the bedroom door. She said she then tried to "dash out" the door to avoid him, but they collided. Report of Proceedings (RP) at 57. She acknowledged that in her written statement to the police, she declared that Petersen had punched her in the eye.
Melissa Schaefer, the emergency room nurse that attended Dana, testified that Dana told her that she was afraid, that Petersen had hit her in the face, and that the children had witnessed it. She testified that Dana said Petersen was mad at her for not getting any housework done that day.
Deputy Joseph McLoughlin testified that he responded to the 911 call and spoke with Dana. He described her as visibly upset, crying, and red-faced but able to calmly explain what had happened. She told him that she called the police because her husband had punched her in the face, though she was not sure if it was with the back of his hand or with a fist. He testified that he spoke with Eric and Eric heard his parents arguing, saw his father kick the door open, and heard what sounded like a punch. The Deputy also testified that he spoke with Petersen, who told him that he had backhanded his wife in response to her trying to hit him, that he kicked the door in because she wanted him to, and when he asked why she would want him to, Petersen responded, "you don't know her like I do." RP 115.
The record also contained a stipulation that Dana suffered a minimal fracture of the right lateral orbital wall and fractures to the lateral and anterior wall of her sinus.
Petersen testified that he kicked the door to make noise so Dana would know that he was serious and that he stumbled into the room when it surprisingly opened. He said his objective was just to get his keys and wallet and go for a walk. He testified that when he fell into the room, Dana lunged at him and he put his arm up to protect himself.
It was the jury's task, though, to decide whether to believe this testimony or to believe the evidence that Petersen intentionally struck Dana. There was ample evidence that Petersen was the aggressor, that Dana locked herself in the bedroom to end the argument, and that Petersen kicked in the door and struck Dana in the face. The evidence was sufficient to prove the elements of the offense and that Petersen did not act in self defense.
II. First Aggressor Instruction
Petersen next argues that the trial court erred in giving a first aggressor instruction because the evidence at trial was that Dana lunged at him and therefore the instruction was improper and denied him his right to a fair trial.
The first aggressor instruction, 11 WPIC 16.04, at 241, is based on the legal doctrine that a person cannot provoke a fight and then claim self defense. See State v. McCann, 16 Wash. 249, 268, 47 P. 443 (1896). Courts disfavor first aggressor instructions because they impact a defendant's self defense claim. State v. Riley, 137 Wn.2d 904, 908-09 n. 1, 976 P.2d 624 (1999). Nonetheless, an aggressor instruction is appropriate even if there is conflicting evidence as to whether the defendant's conduct provoked the attack and thereby necessitated the use of force in self defense. Riley, 137 Wn.2d at 910 (citing State v. Davis, 119 Wn.2d 657, 666, 835 P.2d 1039 (1992)).
Here Petersen's act of kicking down the door supported giving the instruction. The jury could reasonably infer from the evidence that Dana had locked herself in the bedroom to diffuse the confrontation and Petersen kicked in the door to get at her. This arguably made him the aggressor. The trial court did not err in giving a first aggressor instruction.
III. Effective Assistance Of Counsel
Petersen next claims that he was denied his constitutional right to effective representation when his attorney proposed 11 WPIC 17.04, at 262, which is an incorrect statement on the law of self defense. He complains that this instruction improperly uses the phrase "great bodily harm" when referring to the requirement that the defendant have a good faith belief based on reasonable grounds that he is "about to be injured." 11 WPIC 17.04, at 262. This latter phrase is from RCW 9A.16.020(3), which 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, or a malicious trespass, or other malicious interference with real or personal property lawfully in his or her possession, in case the force is not more than is necessary;
(Emphasis added.)
We agree that instruction 15 was improper. Not only did it require that Petersen fear "great bodily injury" rather than just "bodily injury," but it is improper to use this instruction when a defendant claims self defense for use of non-deadly force. State v. L.B., 132 Wn. App. 948, 953, 135 P.3d 508 (2006). See also State v. Woods, 138 Wn. App. 191, 156 P.3d 309 (2007) (third degree assault); State v. Walden, 131 Wn.2d 469, 473, 932 P.2d 1237 (1997); State v. Freeburg, 105 Wn. App. 492, 504, 20 P.3d 984 (2001) ("Great personal injury is an injury that would produce severe pain and suffering"; whereas "great bodily harm is injury creating probability of death or causing significant serious permanent disfigurement, or creating significant permanent loss or impairment of the function of a bodily part or organ.").
Instruction 15 provided:
A person is entitled to act on appearances in defending himself if that person believes in good faith and on reasonable grounds that he 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.
CP at 82.
The State argues that proposing this instruction was not ineffective assistance because the cases noted above also defined "great bodily harm" and here the trial court gave no such instruction. Further, the State argues, the defendant testified that this incident was an accident, not that he struck Dana to protect himself from bodily injury. Petersen testified that when he entered the bedroom, Dana lunged at him, he put up his arm to protect himself, and she ran into his hand. There was no discussion, the State notes, from either the defense or the prosecution about the level of injury Petersen feared. It was simply not an issue in the State's view.
The State also argues that because defense counsel proposed the very instruction Petersen now complains of, the invited error doctrine precludes his challenge. State v. Lucero, 140 Wn. App. 782, 786, 167 P.3d 1188 (2007); State v. Summers, 107 Wn. App. 373, 381-82, 28 P.3d 780 (2001). One may challenge a jury instruction for the first time on appeal when claiming ineffective assistance of counsel for having proposed an incorrect self defense instruction. Woods, 138 Wn. App. at 197 (citing State v. Studd, 137 Wn.2d 533, 551, 973 P.2d 1049 (1999); State v. Aho, 137 Wn.2d 736, 745, 975 P.2d 512 (1999)).
Nonetheless, the State argues that it was not error to give the instruction in this case because we review jury instructions to see if they allowed the parties to argue their theories of the case and the instructions did not prevent Petersen from presenting his theory to the jury.
We examine jury instructions to see if substantial evidence supports them, they allow the parties to argue their case theories, and, when read as a whole, they inform the jury of the applicable law. State v. Rodriguez, 121 Wn. App. 180, 184-85, 87 P.3d 1201 (2004). When a defendant is claiming self defense, however, we subject self defense instructions to heightened scrutiny: "Jury instructions must more than adequately convey the law of self-defense." State v. LeFaber, 128 Wn.2d 896, 900, 913 P.2d 369 (1996). "Read as a whole, the jury instructions must make the relevant legal standard manifestly apparent to the average juror." State v. Walden, 131 Wn.2d at 473. Further, "[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.
So it is with that presumption of prejudice in mind that we examine the jury instructions here to see if they deprived Petersen of his right to a fair trial. First, Petersen does not claim that he was unable to argue his case theory at trial and the record shows that he could and did. Second, under the defense theory, Petersen's subjective state of mind was relevant only to whether he felt that he needed to protect himself. What level of injury he feared was never argued and the real question for the jury was whether Dana's injuries resulted from accident, as Petersen claimed, or were deliberately inflicted, as the State argued. The instructions supported both theories. Third, the trial court's instruction on the lawful use of force properly informed the jury that Peterson could use reasonable force if he "reasonably believe[d] that he . . . [was] about to be injured." CP at 81; Instr. 14.
In our view, the instructional error in the self defense instruction 15, did not deprive Petersen of a fair trial. The question before the jury here was not whether Petersen feared injury or great bodily injury but whether Dana and he collided when she tried to leave the bedroom. The jury found that he intentionally struck Dana in the face causing substantial bodily harm. If the jury had believed his claim that he simply raised his arm to deflect her aggression, it would not have found that he acted intentionally. Further, although Petersen argued that he acted in self defense, the record does not support his claim. He characterized what happened as accidental not a necessary use of force to prevent injury. Under these circumstances, we find the instructional error harmless.
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.
BRIDGEWATER, J. and QUINN-Brintnall, J., concur.