party is entitled to have the jury instructed on its theory
of the case if there is sufficient evidence to support the
theory. To determine whether the evidence is sufficient,
trial courts must view the evidence in the light most
favorable to the party who requests the instruction. This
ensures that juries are the arbiters of factual disputes.
the trial court denied Brandon Tullar his requested
self-defense instruction because he did not testify that he
feared his opponent would badly beat him. But the law allows
Tullar to establish his subjective fear by circumstantial
evidence through the testimony of others. Because
Tullar's evidence sufficiently established a self-defense
theory, the trial court erred in not giving Tullar's
requested instruction. We reverse
conviction and order a new trial.
December 31, 2017, correctional officer Timothy Millward was
making his welfare checks on inmates at the Okanogan County
jail when he came across Johnathan Cook's cell. Officer
Millward saw Cook facing away from the door, and Officer
Millward could tell something was wrong. Officer Millward
asked Cook to turn around, and he noticed bruising and a
laceration on Cook's face, a bloodstained shirt, and
bruising on his ear. Officer Millward took Cook to get
medical attention. Cook was diagnosed with a fractured nose
and a fractured left eye socket.
Eugene Davis was dispatched to investigate the assault. Cook
reported that he was in his cell around 10:00 p.m., when
Brandon Tullar entered it and punched him in the back of the
head. As Cook turned around, Tullar elbowed him in the left
eye. This caused Cook to lose his vision and fall. Cook tried
to defend himself by covering his face, but Tullar continued
to hit him and knee him in the nose, stomach, and chest. The
assault lasted about three minutes.
Davis then spoke with Tullar. Tullar denied he fought Cook.
Sergeant Davis noticed marks on Tullar's hands and his
elbow, as well as red marks on his neck.
State charged Tullar with assault in the second degree.
Tullar asserted the defenses of self-defense and mutual
trial, the State called Officer Millward, Sergeant Davis, and
Cook. Their testimonies were generally consistent with the
facts related above. After Cook testified, the State rested.
withdrew his claim of self-defense and proceeded with the
defense of mutual combat. He then called two fellow inmates
who witnessed the fight. According to both inmates, Cook and
Tullar were arguing, and Cook challenged Tullar to a fight.
Cook and Tullar then went upstairs to Cook's cell, with
Tullar going first. Once inside the cell, Cook hit Tullar
from behind. Cook put Tullar in a chokehold,  but Tullar
escaped. They exchanged punches until Cook gave up.
the jury instruction conference, the State argued that public
policy precluded inmates charged with assault to assert the
defense of mutual combat. The trial court agreed and declined
to give a mutual combat instruction. Tullar then requested a
self-defense instruction. He argued the instruction was
warranted because there was testimony that Cook threw the
first punch. The State argued that a self-defense instruction
was not warranted because Tullar did not testify to his state
of mind. The State further argued that persons other than
Tullar could not testify about Tullar's state of mind
because that would be conjecture. The trial court noted that
self-defense requires a subjective standard and because
Tullar had not testified about his subjective fear, it would
not give the instruction on self-defense. The trial court
also noted that self-defense was inconsistent with mutual
jury found Tullar guilty of assault in the second degree.