Appeal from Superior Court of King County. Docket No: 94-1-03428-2. Date filed: 11/14/94. Judge signing: Hon. Jo Anne Alumbaugh.
Authored by Ann L. Ellington. Concurring: H. Joseph Coleman
The opinion of the court was delivered by: Ellington
ELLINGTON, J. -- Nhan Thai and his domestic partner, Giau Nguyen, had a disagreement on the way home from a party. Thai hit Nguyen several times; Nguyen summoned police. Although Nguyen was uncooperative with authorities after her initial contacts, and supported Thai's theory of self defense, Thai was nevertheless convicted of assault in the second degree. The issues we must address are the propriety of the trial court's aggressor instruction, and whether Thai was entitled to a "no duty to retreat" instruction under our recent decision in State v. Williams, 81 Wash. App. 738, 916 P.2d 445 (1996). Because the evidence supported it, submission of the aggressor instruction was appropriate. Under the circumstances here, the no duty to retreat instruction was not required, since no reasonable jury could have concluded that Thai used excessive force because he failed to retreat. We therefore affirm.
Thai and Nguyen had attended a party together and on the way home, they argued. Nguyen refused to go inside their apartment, prompting Thai to grab her hand and attempt to pull her inside. Nguyen withdrew her hand and either threw her keys at Thai or hit Thai two or three times in the face with her keys. *fn1 Thai testified that he was in pain, confused, off balance, feared losing an eye, and hit Nguyen to make her stop hitting him.
Thai and Nguyen both testified that he struck her two or three times (although Nguyen told her doctor and the police that he hit her five or six times). At the time, Nguyen was seven months pregnant with Thai's child and weighed 85 pounds; she is 4'8" tall. Thai is 5'5" and weighed 140 pounds.
Immediately after the assault, Nguyen called the police. Nguyen testified that Thai told her to put the phone down. Thai left before the police arrived. Officer Steven Strand took Nguyen's statement. Strand testified that Nguyen was crying and upset and that the left side of her face was swollen and red. Nguyen told him that Thai had struck her five times with a closed fist, and pointed to her ear.
The next day, Nguyen went to her obstetrician, Dr. Theodore Palo, and complained about pain in her ear. She was crying and upset during the examination, and informed Palo that Thai had hit her on the left side of the head six or seven times. Palo discovered that Nguyen's eardrum was perforated and coated with blood. Palo testified that the injury was relatively recent, "acute," and painful.
When Officer Jung Trinh served a material witness warrant on Nguyen, she told him she injured her ear falling in the bathtub. At trial, she claimed she injured her ear falling down while cleaning the bathroom, and that her ear injury occurred "three months before" and "a few years before."
The court instructed the jury that "the use of force . . . is lawful when used by a person who reasonably believes that he is about to be injured . . . and when the force is not more than is necessary" and that "necessary means no reasonably effective alternative . . . . existed." The court gave the following aggressor instruction:
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 or conduct provoked or commenced the fight, then self-defense is not available as a defense. See WPIC 16.04.
Thai first argues that the instruction is vague, overbroad, and misleading. Thai did not make this argument to the trial court, and we need not consider it here. RAP 2.5(a). In any event, the circumstances here do not pose any danger that the jury was misled or that the jury relied on provocation which resulted from constitutionally protected or accidental conduct. Cf. State v. Arthur, 42 Wash. App. 120, 122, 708 P.2d 1230 (1985); State v. Hardy, 44 Wash. App. 477, 484, 722 P.2d 872, rev. denied, 107 Wash. 2d 1009 (1986).
Thai argues that there was insufficient evidence to support the aggressor instruction. A court's submission of jury instructions is reviewed for an abuse of discretion. See State v. Lucky, 128 Wash. 2d 727, 731, 912 P.2d 483 (1996). The aggressor instruction is properly submitted ...