The opinion of the court was delivered by: Webster
WEBSTER, J. -- Dean Goodwin appeals his conviction for second degree assault, arguing that the trial court (1) erred in giving an aggressor instruction when Goodwin instigated the altercation by words, not by physical acts, (2) erred in entering judgment because the State failed to disprove beyond a reasonable doubt that the defendant acted in self-defense, and (3) abused its discretion in admitting testimony regarding Goodwin's violation of a no-contact order. Because the trial court did not abuse its discretion in giving the aggressor instruction or admitting testimony and there was sufficient evidence that Goodwin did not act in self-defense, we affirm.
Goodwin and the victim were friends and sometimes romantic partners for about two years before the incident at issue. At the time of the incident, they were living together at the Legend Motel. The victim was attempting to take a nap when Goodwin asked her to help him hook up a computer next to the bed. When she declined to help Goodwin, he got "right next to [her] face" and called her "Queen Lateefahs," a derogatory nickname relating to a gap in her teeth. The comment hurt her feelings and she slapped Goodwin in the face. His face was particularly tender because he had facial reconstruction surgery three months earlier.
The victim testified that Goodwin then grabbed her arm and pushed her onto the bed. In response, she punched him in the face three times with a closed fist. Goodwin then straddled her, and after further argument, punched her in the face, breaking her nose. She managed to push Goodwin off her and tried to run to the bathroom. He pushed her back on the bed and started to choke her. When she told him to stop because someone would call the police, he said that if he were going to go to jail, he may as well have a reason. She finally broke free and Goodwin allowed her to leave the room.
Goodwin claimed he was acting in self-defense. His testimony differed from the victim's in that he said that he was trying to restrain her so she would not injure his recently reconstructed face. He claimed that her nose broke inadvertently in the struggle.
The jury convicted Goodwin of second degree assault.
Aggressor Instruction Goodwin contends that the court erred in giving an aggressor instruction because there was not sufficient evidence that Goodwin was the aggressor.
Jury instructions are appropriate when, read as a whole, they correctly state the applicable law, are not misleading, and allow each party to argue its theory of the case. State v. Hursh, 77 Wash. App. 242, 247, 890 P.2d 1066, review denied, 126 Wash. 2d 1025, 896 P.2d 64 (1995). Also, there must be evidence to support the theory on which the instruction is based. State v. Davis, 119 Wash. 2d 657, 665, 835 P.2d 1039 (1992).
The aggressor instruction is not favored, but may be given when there is evidence that 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). Here, the trial court gave WPIC 16.04:
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 defendant's acts and conduct provoked or commenced the fight, then self-defense is not available as a defense. (emphasis added).
Goodwin does not claim that the instruction, which employs the holding of State v. Arthur, *fn1 is an incorrect statement of the law. Rather, he argues that there was not sufficient evidence to support it.
The question is whether Goodwin's conduct constituted an intentional act, reasonably likely to provoke a belligerent response, creating a necessity for acting in self-defense. Goodwin knew that the victim was sensitive about her teeth, used the nickname in anger, and was aware that, when she gets violent, "she doesn't stop." Given the nature of the relationship between the parties, the remark may have been reasonably likely to create a belligerent response. By arguing self-defense, Goodwin in effect concedes that his comments created a need to ...