Opinion
No. 59567-9-I.
July 21, 2008.
Appeal from a judgment of the Superior Court for King County, No. 06-1-00196-2, Michael J. Fox, J., entered January 19, 2007.
Affirmed by unpublished per curiam opinion.
Tyler Shepple appeals his third degree assault conviction on grounds that he received ineffective assistance of counsel when his attorney proposed an erroneous jury instruction, and that the court abused its discretion by refusing to instruct the jury on the inferior degree or lesser included offense of assault in the fourth degree. The State concedes, and we agree, that counsel's performance was deficient. Because there is no reasonable probability that the outcome would be different absent this deficient performance and Shepple was not entitled to an instruction on fourth degree assault, we affirm.
BACKGROUND
Tyler Shepple and his roommate Kathy Chi went with several other individuals to a bar in the Fremont neighborhood of Seattle. They broke into smaller groups, and Shepple socialized with his friends, Chi with her friends, and Chi's former boyfriend, David Sorenson, spent time with his friends, David Suddendorf and Brandon Curneen.
By closing time, Chi, Sorenson, Suddendorf, and Curneen were intoxicated. Sorenson, Suddendorf, and Curneen stood in the street on Fremont's main thoroughfare to hail a taxi. Chi and Shepple were leaving the bar together when Sorenson shouted at Chi. Shepple thought he heard Sorenson and his friends insult Chi, but Chi believed the group just wanted to say goodbye. Chi ran over and embraced Sorenson. Shepple, who was not intoxicated, followed, concerned that Chi might be vulnerable.
Shepple testified that when he approached the group, Curneen said, "What the F do you want?" and pushed Shepple. Report of Proceedings (RP) (Nov. 6, 2006) at 89. When Shepple pushed Curneen back, Suddendorf grabbed Shepple's arm. Shepple pushed Suddendorf away. As a result, Suddendorf fell backward and was hit by a passing vehicle.
Suddendorf suffered serious injuries. An ambulance arrived within minutes to take him to Harborview Hospital, where he remained for nearly a week. He suffered a partially collapsed lung, multiple rib fractures, spinal fractures, and a hairline fracture of his scapula.
When police arrived on the scene, Shepple denied any physical contact with Suddendorf. Shepple told police that he held his arm up to stop one of the group from approaching him and Suddendorf backed up two steps and was hit by the car. Shepple claimed he "wasn't in any type of confrontation with" Suddendorf. Ex. 12.
Sorenson and Chi both told police that Shepple pushed Suddendorf into traffic. The driver of the vehicle also told police that he was pushed into the road into her path.
The State charged Shepple with assault in the second degree for pushing Suddendorf and recklessly causing him serious bodily harm, and with assault in the fourth degree for pushing Curneen.
RCW9A. 36.021(1)(a).
RCW9A. 36.041(1).
At trial, Chi, Curneen, and Sorenson testified that Shepple approached the group and pushed Curneen and Suddendorf entirely without provocation. Their testimony was consistent that none of them insulted Chi or taunted Shepple, and that no one touched Shepple. Chi also testified that before police arrived, Shepple told her he wanted to leave the scene, and she forcefully told him to stay.
Shepple admitted he had lied in his statement to the police, saying he "gave them as much as I thought I could without getting myself in trouble." RP (Nov. 6, 2006) at 96. Shepple testified that when Suddendorf grabbed his arm, he thought he might get hit. Shepple was afraid he might get hurt "if it escalated." Id. at 99. On intense cross-examination, Shepple repeatedly testified that he just "reacted" when Suddendorf touched him, but then stated that he "was scared at that point. There were three gentlemen around me." Id. at 117.
Shepple proposed instructions on the lesser included and inferior degree offenses of assault in the third and fourth degrees. The court agreed to instruct the jury on third degree assault, but ruled there was no basis for an instruction on assault in the fourth degree. The court also gave Shepple's proposed self-defense instructions.
On count 1 concerning Suddendorf, the jury convicted Shepple of the lesser included offense of third degree assault. It acquitted him of the fourth degree assault as to Curneen. Shepple received a low end standard range sentence of 30 days, converted into community service.
DISCUSSION
Shepple first contends the jury should have been instructed on fourth degree assault as either a lesser included or inferior degree offense of assault in the second degree. Shepple argues the instruction was appropriate because the jury could find that he pushed Suddendorf, but was not responsible for the harm Suddendorf sustained when he was hit by the car. The court declined to give the instruction because there was no evidence that Shepple committed only fourth degree assault. We review a court's refusal to give a proposed instruction for abuse of discretion. State v. Walker, 136 Wn.2d 767, 777, 966 P.2d 883 (1998).
The court explained, "Well, I understand the point, but I think this is just the same as if someone were to push someone and that person fell backwards and hit their head very hard on some cement or something and wound up with a fractured skull. Here we have another moving object, but that's really the only difference. That's why I would intend to . . . not give the assault 4 as a lesser included." RP (Nov. 6, 2006) at 63.
An instruction on a lesser included offense is warranted when (1) each of the elements of the lesser offense are a necessary element of the charged offense, and (2) the evidence in the case supports an inference that only the lesser crime was committed. State v. Workman, 90 Wn.2d 443, 447-48, 584 P.2d 382 (1978). The first requirement is the legal prong and the second is the factual prong.
Similarly, an inferior degree offense instruction is available only when (1) the statutes for both the charged offense and the inferior degree offense proscribe the same conduct; (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. State v. Fernandez-Medina, 141 Wn.2d 448, 454, 6 P.3d 1150 (2000) (quoting State v. Peterson, 133 Wn.2d 885, 891, 948 P.2d 381 (1997)). The first two components are the legal prongs; the third is the factual prong.
Only the factual prongs of the two tests are at issue here, and the test for both is the same: there must be substantial evidence to support a rational inference that the defendant committed only the lesser included or inferior degree offense to the exclusion of the greater offense. Id. at 455. Viewed in the light most favorable to Shepple, the evidence must affirmatively establish his theory of the case; "it is not enough that the jury might disbelieve the evidence pointing to guilt." Id. at 456. Shepple does not satisfy this test.
A person commits assault in the fourth degree when "under circumstances not amounting to assault in the first, second, or third degree, or custodial assault, he or she assaults another." RCW 9A.36.041(1). It is undisputed that Shepple pushed Suddendorf, that Suddendorf then fell into traffic and was hit by a car, and that Suddendorf's resulting injuries were severe and long-lasting. Suddendorf suffered either substantial bodily harm, or bodily harm accompanied by substantial pain extending for a period of time sufficient to cause considerable suffering. These are elements of second and third degree assault, respectively.
A person commits assault in the second degree when he assaults another and "thereby recklessly inflicts substantial bodily harm" upon that person. RCW 9A.36.021(1)(a). Third degree assault is committed when a person "[w]ith criminal negligence, causes bodily harm accompanied by substantial pain that extends for a period sufficient to cause considerable suffering." RCW 9A.36.031(1)(f).
The undisputed facts thus establish either second or third degree assault. Shepple therefore could not have been found guilty of fourth degree assault. See State v. Daniels, 56 Wn. App. 646, 651, 784 P.2d 579 (1990). Shepple was not entitled to an instruction on fourth degree assault as a lesser included or inferior degree offense.
Shepple next contends he received ineffective assistance of counsel because his attorney proposed an erroneous self-defense instruction. To prevail on this claim, Shepple must show both that counsel's performance fell below an objective standard of reasonableness and that but for the inadequate representation, there is a reasonable probability that the trial's outcome would have been different. Strickland v. Washington, 466 U.S. 668, 697, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
Shepple's attorney proposed a pattern instruction explaining that a person may use force to defend themselves against a perceived attack even if it later develops that the person was mistaken as to the extent of the danger. Well before Shepple's trial, many courts had held that the same "mistaken belief" instruction is not a correct statement of the law because it provides that the defendant may use force when he believes he is in danger of "great bodily harm" when the law actually permits him to defend himself against the threat of mere injury. See, e.g., State v. Walden, 131 Wn.2d 469, 475-78, 932 P.2d 1237 (1996); State v. L.B., 132 Wn. App. 948, 953, 135 P.3d 508 (2006); State v. Rodriguez, 121 Wn. App. 180, 185, 87 P.3d 1201 (2004); State v. Freeburg, 105 Wn. App. 492, 505, 20 P.3d 984 (2001).
The instruction provides: "A person is entitled to act on appearances in defending himself, 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." Clerk's Papers at 17.
In light of these decisions, proposing the erroneous mistaken belief instruction constitutes deficient representation. See State v. Woods, 138 Wn. App. 191, 201, 156 P.3d 309 (2007); Rodriguez, 121 Wn. App. at 187. The State's concession that the same is true here is well taken.
Even so, Shepple cannot show there is a reasonable probability that the outcome would have been different absent counsel's deficient performance. The point of the erroneous instruction is to inform the jury that a person may use force to defend against a perceived attack, even if it later turns out the person misjudged the extent of the danger posed. But Shepple's self-defense theory was not that he was mistaken about the extent of the danger he faced, and no evidence supports that inference. Neither counsel referenced the mistaken belief instruction in closing argument. Rather, Shepple argued that he reacted appropriately when Suddendorf grabbed him, and both parties highlighted the general self-defense instruction, which stated the correct standard. Thus, as the State points out, the mistaken belief instruction was superfluous.
Instruction 17 provided: "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 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." Clerk's Papers at 50.
The verdict is further evidence that the jury was unaffected by the erroneous instruction. The jury acquitted Shepple of the fourth degree assault against Curneen. It is undisputed that Shepple pushed Curneen, so to acquit Shepple, the jury must have concluded he was acting in self-defense. Since there was no evidence that Shepple feared great bodily harm at the hands of either Curneen or Suddendorf, the jury's acquittal on count 2 strongly suggests it did not apply the superfluous mistaken belief instruction.
Shepple suggests his acquittal on count 2 is inconsistent with his conviction for the assault on Suddendorf and that it suggests the jury would have found he acted in self-defense as to Suddendorf but for the erroneous instruction. We disagree. First, if the instruction compromised the jury's ability to find self-defense applied to the assault on Suddendorf, it should have done so with respect to the assault on Curneen. It did not. Second, the jury reasonably could have concluded that repelling a push with a push that left Curneen on his feet was lawful force, but that Shepple exceeded lawful force when he reacted to Suddendorf grabbing his arm by pushing him with such force that Suddendorf fell backward into traffic.
Because we find no probability that the outcome of Shepple's trial would have been different absent his counsel's deficient performance, a new trial is not appropriate.
Affirmed.