Opinion
No. 37913-9-II.
Filed: September 9, 2009.
Appeal from the Superior Court, Clark County, No. 08-1-00043-5, Robert L. Harris, J., entered May 28, 2008.
Affirmed by unpublished opinion per Bridgewater, J., concurred in by Van Deren, C.J., and Hunt, J.
Unpublished Opinion
Ronald D. Stoltenberg appeals his conviction for second degree assault — domestic violence, arguing that he received ineffective assistance of counsel when his trial counsel did not request jury instructions on self-defense or defense of property. Concluding that he was not denied effective assistance of counsel, we affirm Stoltenberg's conviction.
A commissioner of this court initially considered Stoltenberg's appeal as a motion on the merits under RAP 18.14 and then referred it to a panel of judges.
On January 1, 2008, Stoltenberg and Sandra Bohannon, who had been dating, went out to dinner. They returned to Stoltenberg's house and got into an argument. Stoltenberg told her to leave and she complied. She left without her shoes, purse or phone. From here, Stoltenberg's and Bohannon's testimonies diverge.
According to Bohannon, she went into the backyard, and when Stoltenberg went out the front door to lock his truck, she went in the house through the back door. She retrieved her shoes and purse but did not find her phone. She did find Stoltenberg's phone, so she took it. Before she could leave the house, Stoltenberg came back. She hid in Stoltenberg's daughter's bedroom. Stoltenberg was surprised to find her there. He pulled her from the floor onto a bed and then punched her in the left eye. She ran from Stoltenberg's house and sought help from a neighbor.
According to Stoltenberg, Bohannon left and walked down the street. He locked the garage and basement doors, and when he returned to the front room, he noticed that Bohannon's purse and his phone were no longer where he had seen them. He looked for his phone and went into his daughter's bedroom, where he was surprised to find Bohannon hiding behind a bed. He helped her off the floor, but she grabbed his groin and started kicking him. He backed out of his daughter's bedroom, went into his own bedroom and heard Bohannon throw his daughter's jewelry box against a wall. Bohannon came into his bedroom, kicked him in the shin and ran down the hall into the living room. He heard a crash. When he got to the living room, Bohannon was getting up from the floor near a piano. He noticed that a chair had been moved and that a plant had been knocked over. Bohannon fled Stoltenberg's house.
The State charged Stoltenberg with second degree assault — domestic violence. Bohannon and Stoltenberg testified as described above. A physician assistant, who treated Bohannon at the emergency room, testified that she suffered a broken orbit behind her left eye. He testified that her injury was consistent with having been punched in the eye and was not consistent with having fallen and hit a piano. The neighbor from whom Bohannon sought help testified that as she was on his porch, Stoltenberg came out of his house and said, "Don, I didn't lay a hand on her." RP (May 21, 2008) at 172. He also testified that two days later, Stoltenberg told him that Bohannon had injured herself by slipping on the wooden floor and hitting the piano. The police officer who investigated Bohannon's complaint testified that in the early morning after Bohannon's injury, Stoltenberg told him that Bohannon had possibly fallen near the piano when she ran down the hall, but that he had not seen her fall.
Stoltenberg requested, and was granted, a lesser-included jury instruction for fourth degree assault. Stoltenberg did not request jury instructions on self-defense or defense of property. The jury found him guilty of second degree assault — domestic violence. He appeals.
Stoltenberg argues that his trial counsel denied him effective assistance of counsel when he failed to request jury instructions for self-defense and defense of property. To demonstrate ineffective assistance of counsel, Stoltenberg must show that his trial counsel's performance fell below an objective standard of reasonableness and that without the deficient performance, the result of the trial probably would have been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). Stoltenberg contends that because Bohannon reentered his house without permission, destroyed his daughter's jewelry box and grabbed and kicked him, his trial counsel should have argued and sought jury instructions for the affirmative defenses of self-defense and defense of property under RCW 9A.16.020(3) and (4). He contends that his trial counsel's failure to do so was objectively unreasonable and prejudiced him.
But to obtain a jury instruction on self-defense or, by analogy, on defense of property, there must be some credible evidence tending to establish that the defendant acted in self defense or acted in defense of property. State v. Graves, 97 Wn. App. 55, 61-62, 982 P.2d 627 (1999); State v. Dyson, 90 Wn. App. 433, 438, 952 P.2d 1097 (1997). There was no credible evidence that Stoltenberg acted in self-defense or in defense of property. He denied having struck Bohannon or having used any force against her. He testified that he heard her fall and get up from near the piano and so thought she had hit her face on the piano. In the absence of evidence that he used force to defend himself from Bohannon or to defend his property, Stoltenberg was not entitled to jury instructions on self-defense or defense of property. State v. King, 24 Wn. App. 495, 501, 601 P.2d 982 (1979). Therefore, Stoltenberg's trial counsel's failure to request those instructions was not deficient performance. Stoltenberg fails to demonstrate ineffective assistance of counsel.
In his statement of additional grounds (SAG) under RAP 10.10, Stoltenberg raises four issues. First, he contends that the trial court erred in admitting Bohannon's emergency room records because they contained the statement that Bohannon was "assaulted by boyfriend." SAG at 1. He contends the records were hearsay. But under ER 803(a)(4) and RCW 5.45.020, the emergency room records are not inadmissible hearsay. The trial court did not err.
In his remaining issues, Stoltenberg contends that the trial court should have allowed evidence that he and Bohannon were fighting over her desire to use drugs, that Bohannon had made false claims about getting into an argument with another person and that Bohannon was a methamphetamine addict. But he does not show how any of this evidence would have been relevant to the charge of assault. The trial court did not err in excluding such evidence.
Affirmed.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports but it will be filed for public record pursuant to RCW 2.06.040.
HUNT, J. and VAN DEREN, C.J., concur.