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State v. Barton

September 3, 1996

STATE OF WASHINGTON, RESPONDENT,
v.
JEREMY JAY BARTON, APPELLANT.



Sweeney, C.j., Munson, J., Thompson, J.

The opinion of the court was delivered by: Sweeney

SWEENEY, C.J. After several months of arguing over a woman, Jeremy Barton and Ryan Polensky had a fist fight. Each testified that the other was the aggressor. Both were injured as a result of the fray, but Mr. Polensky apparently got the worst of it. His injuries included a "blowout" fracture underneath his eye, a lost tooth, and a twisted tooth. The State charged Mr. Barton with and he was convicted of second degree assault. He appeals and raises two assignments of error.

First, he contends the court erred in giving an "aggressor instruction" because the instruction unnecessarily and unfairly permitted the State to over-emphasize its theory of the case. Second, he contends the court erred in refusing to give a lesser included instruction (fourth degree assault). We conclude that the trial court erred in neither instance and affirm the judgment of guilty.

Discussion

An aggressor instruction is appropriate in situations where credible evidence exists from which the jury could reasonably conclude the defendant provoked the need to act in self-defense. State v. Kidd, 57 Wash. App. 95, 100, 786 P.2d 847, review denied, 115 Wash. 2d 1010, 797 P.2d 511 (1990). When conflicting evidence exists as to whether the victim or the defendant struck the first blow, an aggressor instruction is particularly appropriate. State v. Davis, 119 Wash. 2d 657, 665-66, 835 P.2d 1039 (1992); State v. Cyrus, 66 Wash. App. 502, 508-09, 832 P.2d 142 (1992), review denied, 120 Wash. 2d 1031, 847 P.2d 481 (1993); State v. Heath, 35 Wash. App. 269, 271-72, 666 P.2d 922, review denied, 100 Wash. 2d 1031 (1983).

Both Mr. Polensky and Mr. Barton claim the other provoked the fight. Mr. Polensky alleges Mr. Barton cracked his knuckles and came at him. Mr. Barton says he waited outside to talk to Mr. Polensky, but after he asked if Mr. Polensky still intended to fight, Mr. Polensky pushed him and knocked him off balance. An aggressor instruction was therefore appropriate. Cyrus, 66 Wash. App. at 508-09.

Mr. Barton also challenges the wording of the aggressor instruction. He contends that the instruction allows the implication that his verbal barbs could be an "intentional act." He argues that since assault can never be by words alone, the instruction is incorrect by allowing the jury to infer he committed an unlawful act by calling the victim names. He cites State v. Hardy, 44 Wash. App. 477, 722 P.2d 872, review denied, 107 Wash. 2d 1009 (1986). In Hardy, the instruction under review used the words "unlawful act" rather than "intentional act" and did not define the phrase "unlawful act." 44 Wash. App. at 484. The Court of Appeals held the instruction was vague and reversed and remanded. Id. at 484-85.

The aggressor instruction given here read: "No person may, by any intentional act reasonably likely to provoke a belligerent response, create a necessity for acting in self-defense . . . ." "Intentional act" was defined as: "A person acts with intent or intentionally when acting with the objective or purpose to accomplish a result which constitutes a crime." The instructions are therefore distinguishable from those in Hardy. First, the word "intentional act" is used rather than "unlawful act." And "intentional act" is then appropriately defined.

Mr. Barton next contends the court should have instructed the jury on fourth degree assault. A court should instruct on a lesser included offense when (1) each element of the lesser included offense is a necessary element of the charged offense, and (2) the evidence in the case supports an inference that the defendant committed the lesser crime. State v. Workman, 90 Wash. 2d 443, 447-48, 584 P.2d 382 (1978). A trial court's refusal to give an instruction based on the facts presented is a matter of discretion. But we review de novo the refusal to give an instruction based on a ruling of law. State v. Lucky, 128 Wash. 2d 727, 731, 912 P.2d 483 (1996).

We first resolve the question whether fourth degree assault is a lesser included offense of second degree assault under the first part of the Workman test. RCW 9A.36.021(1)(a) defines second degree assault as "[ i] ntentionally assault[ ing]

another and thereby recklessly inflict[ ing]

substantial bodily harm . . . ." RCW 9A.36.041 defines fourth degree assault as an assault that does not amount to a first, second, or third degree assault. Assault is an attempt, with unlawful force, to inflict bodily injury upon another with apparent present ability to do so. State v. Coffelt, 33 Wash. 2d 106, 108, 204 P.2d 521 (1949); Peasley v. Puget Sound Tug & Barge Co., 13 Wash. 2d 485, 505, 125 P.2d 681 (1942). RCW 10.61.003 allows a jury to convict a defendant, on a charge of varying degrees, of the lesser degree.

Fourth degree assault is a lesser degree of second degree assault, and second degree assault includes the elements the State must prove for fourth degree assault. The first part of the Workman test is therefore satisfied.

We must next decide if the evidence supports an inference that the defendant committed a lesser crime. To satisfy the factual prong of Workman, the evidence must support an inference that the defendant committed the lesser offense instead of the greater offense. State v. Karp, 69 Wash. App. 369, 376, 848 P.2d 1304, review denied, 122 Wash. 2d 1005, 859 P.2d 602 (1993). A defendant is not, however, entitled to a lesser included offense instruction when the defense is self-defense because it is a complete defense. It negates the required inference that the defendant only committed the lesser included offense. State v. Hurchalla, 75 Wash. App. 417, 423, 877 P.2d 1293 (1994), review granted, 125 Wash. 2d 1020 (1995), review dismissed (May 5, 1995) (Supreme Court cause 62158-6). The reasoning is ...


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