Opinion
No. 33015-6-II.
August 7, 2007.
Appeal from a judgment of the Superior Court for Pierce County, No. 02-1-05521-6, D. Gary Steiner, J., entered March 11, 2005.
Affirmed by unpublished opinion per Quinn-Brintnall, J., concurred in by Armstrong and Penoyar, JJ.
A jury found Feleti Peter Sue guilty of first and second degree assault, with deadly weapon enhancements, and bail jumping. Sue argues that the trial court erred in declining to instruct the jury on voluntary intoxication, self-defense, and defense of others, and that his counsel was ineffective for failing to request those instructions. But the evidence did not adequately support Sue's claim that he was so intoxicated that he could not form the requisite mental state. And the trial court did not err by not instructing the jury on self-defense or defense of others. Accordingly, we affirm.
Sue's counsel on appeal makes the ineffective assistance argument apparently because she believes trial counsel withdrew his request for an voluntary intoxication instruction. Appellate counsel cites 4 Report of Proceedings at 476-77 for the withdrawal, but the record shows that counsel withdrew only the self-defense and defense of others instructions. And the State does not argue that Sue waived the intoxication instruction error by failing to request the instruction at trial.
FACTS
The briefs and the record use nicknames and first names to describe many of the participants inthis case. We use the witnesses' given names and use first names only where the record fails to establish the person's legal or given name or where several witnesses share the same last name.
Sue (a/k/a B.J.), Aukusitino Kaio (a/k/a Pete, Tino), Jonathan Fiatoa (a/k/a Johnny), Toa Sagote (a/k/a Junior), Sipepa Puletu (a/k/a Shirley), Joseph Tuiletufuga (a/k/a Jojo), Tavita Puletu (a/k/a David), Tomasi Puletu (a/k/a Thomas), Monica Puletu, Randy, and several of their friends and relatives celebrated Thanksgiving by drinking alcohol throughout the day. After dinner, most of the group went to a bar and continued drinking. They returned to an apartment complex after the bar closed.
Randy is Sue's older brother but the record does not establish Randy's last name.
After returning from the bar, Sue and his girl friend had a loud argument in the apartment complex parking lot. When Tuiletufuga told Sue and his girl friend to quiet down, Sue and Tuiletufuga got into a fight.
Several group members broke up the fight, and Fiatoa, Kaio, Sue, Randy, Monica Puletu, Sipepa Puletu, and Sagote returned to Tavita Puletu's apartment. Once inside, Kaio asked Sue, in a lecturing tone, "what's your problem, what's going on?" 3 Report of Proceedings (RP) at 302. Kaio's question agitated Sue, who stood up and started swearing at Kaio. Others became involved in the confrontation and Sue then went to the kitchen and grabbed a knife.
Sagote, Fiatoa, Sipepa Puletu, Kaio, and Tuiletufuga said that Sue and Tuiletufuga were fighting in the parking lot. Sue said that he and Fiatoa were fighting in the parking lot. Tuiletufuga testified that Sue threw a punch at him, but that they never physically hit each other.
The witnesses gave conflicting testimony about what happened next, but most agreed that Kaio attempted to wrestle the knife away from Sue. Randy, Fiatoa, and perhaps Sipepa Puletu and Sagote intervened in the fight. Witnesses then saw what they believed to be Sue stabbing Kaio. Shortly after stabbing Kaio, Sue also stabbed Fiatoa under his right armpit. Sagote testified that, before Sue stabbed Fiatoa, Sue and Fiatoa had each other by the throat. Fiatoa said that although he did not actually see Sue stab him, he saw him "coming toward me with a knife . . . he was up against me. I thought he was hitting me with something." 3 RP at 335. The witnesses testified that Sue was the only person they saw with a weapon during the fight.
The witnesses' testimony differs as to who intervened in the fight.
Sagote testified that he actually saw Sue stab Kaio in the side. Kaio said that he did not see who stabbed him, but that Sue was the only person he saw with a knife. Fiatoa said he never actually saw Sue stick the knife in Kaio, but that he saw Sue on the floor with Kaio, he saw that Sue had a knife, and he heard Kaio scream and then saw him run to the couch. Sipepa Puletu testified that she never saw Sue stab anybody, but she saw Sue with a knife, fighting Kaio, and saw that "[Sue's] arm had went down." 2 RP at 127.
Police Officer Scott Green and three other officers responded to a call reporting the fight. The officers could hear arguing and "some rustling" inside the apartment. 2 RP at 26. They knocked on the door and announced several times that they were police officers, but no one responded. Because they believed the fight was escalating, the officers kicked the door open and entered the apartment. Green described the scene inside the apartment as "pretty chaotic" (2 RP at 26); several people were fighting on the floor, there was blood everywhere, and he saw one man lying on the couch with apparently serious injuries. The officers also saw a bloody knife sticking into the wall.
The officers stopped the fight. After speaking with several witnesses, the officers arrested Sue. The police took Sue to the police station and advised him of his Miranda rights, which Sue waived. Green said that Sue had superficial injuries to his hands, was cooperative, "very humble and disappointed," and "[v]ery concerned about everybody's welfare." 2 RP at 35, 40.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
The State charged Sue with first degree assault of Kaio and second degree assault of Fiatoa, with deadly weapon enhancements on each count.Sue failed to appear for trial and the State then added a bail jumping charge.
Trial eventually began on January 4, 2005. During a break in the trial, the judge discussed jury instructions with the parties. The State had offered a voluntary intoxication instruction, but the prosecutor said he was withdrawing it; the State also objected to Sue's proposed self-defense and defense of another instructions. The court ruled that the evidence did not support giving a voluntary intoxication instruction. The court also questioned the need for the self-defense instruction because "so far there [was] insufficient evidence of self-defense." 4 RP at 410. But the court reserved a final ruling on the self-defense and defense of another instructions pending additional evidence.
Sue exercised his right not to testify and, after resting the defense case, Sue's trial counsel withdrew his proposed self-defense and defense of another instructions. The trial court did not instruct the jury on voluntary intoxication.
The jury convicted Sue as charged and found that he committed the assaults with a deadly weapon. This appeal requires us to answer whether the evidence supported jury instructions on voluntary intoxication, self-defense, or defense of others.
ANALYSIS
Voluntary Intoxication Instruction
Sue argues that the trial court should have instructed the jury on voluntary intoxication based on the evidence showing that he consumed alcohol and was intoxicated on the night in question. We disagree.
The State proposed an instruction reading: "No act committed by a person while in a state of voluntary intoxication is less criminal by reason of that condition. However, evidence of intoxication may be considered in determining whether the defendant acted with intent." Clerk's Papers at 164. Sue did not propose a voluntary intoxication jury instruction, but urged the trial court to give a similarly worded instruction, consistent with the voluntary intoxication statute, RCW 9A.16.090, and 11 Washington Practice: Washington Pattern Jury Instruction: Criminal 18.10, at 220 (2d ed. 1994).
Generally, we review the adequacy of jury instructions de novo as a question of law. State v. Cross, 156 Wn.2d 580, 617, 132 P.3d 80 (citing State v. Brown, 132 Wn.2d 529, 605, 940 P.2d 546 (1997)), cert. denied, 127 S. Ct. 559 (2006). Voluntary intoxication instructions are proper only when (1) a particular mental state is an element of the crime charged and when substantial evidence shows that (2) the defendant consumed alcohol and (3) that the drinking affected his ability to form the required mental state. State v. Everybodytalksabout, 145 Wn.2d 456, 479, 39 P.3d 294 (2002) (quoting State v. Gallegos, 65 Wn. App. 230, 238, 828 P.2d 37, review denied, 119 Wn.2d 1024 (1992)). Substantial evidence is evidence sufficient to persuade a fair-minded rational person of the truth of the declared premise. Bering v. Share, 106 Wn.2d 212, 220, 721 P.2d 918 (1986) (citing In re Welfare of Snyder, 85 Wn.2d 182, 185-86, 532 P.2d 278 (1975)), cert. dismissed, 479 U.S. 1050 (1987).
The defendant need not put on a case to introduce evidence of drinking and intoxication. State v. Gabryschak, 83 Wn. App. 249, 253, 921 P.2d 549 (1996). Nor is the defendant requiredto present expert testimony to establish that he was too intoxicated to form the necessary mental state. State v. Thomas, 109 Wn.2d 222, 231, 743 P.2d 816 (1987). A defendant is entitled to a voluntary intoxication instruction if the State's evidence, and evidence the defense elicits during cross-examination of the State's witnesses, contains substantial evidence of the defendant's drinking and its effect on his mind or body. Gabryschak, 83 Wn. App. at 253.
To convict Sue of the crimes charged, the State had to prove a particular mental state for both the first and second degree assault charges. For first degree assault, the State had to prove that Sue intended to inflict great bodily harm. RCW 9A.36.011(1). The State also charged Sue with second degree assault under RCW 9A.36.021(c). Although the second degree assault statute does not expressly require proof of a particular mental state, case law requires that the State prove the common law element of intent. State v. Allen, 116 Wn. App. 454, 463-64, 66 P.3d 653 (2003) (citing State v. Davis, 119 Wn.2d 657, 662, 835 P.2d 1039 (1992)). Thus, intent is an element of both first and second degree assault.
At trial, the evidence established that Sue deliberately broke from fighting, left the dining room, went to the kitchen, armed himself with a knife, and returned to the living room, where he used the knife to stab Kaio and Fiatoa. Sue points to no evidence that his intoxication prevented him from being capable of forming the intent to arm himself and then intentionally assault someone with the deadly weapon he procured in violation of RCW 9A.36.021(c). Thus, the trial court did not err in concluding that there was insufficient evidence that Sue's drinking affected his ability to form the requisite mental state (i.e., intent) to commit second degree assault.
But Sue argues that whether he was too drunk to form the intent to inflict great bodily harm is another question. See RCW 9A.36.011(1). We disagree. The same evidence belies hisclaim that he was so intoxicated that he could not intend to inflict great bodily harm and thus could not commit first degree assault. The evidence clearly shows that Sue was angry and broke from the fist fight with a plan to assault his companions with a knife. He first went to the kitchen where he armed himself with a knife bearing a blade longer than three inches, and then he returned to the fight to stab two people. A defendant acts intentionally when he procures a weapon and then stabs another with the knife he procured. See, e.g., State v. Ollens, 107 Wn.2d 848, 853, 733 P.2d 984 (1987) (holding that the planned presence of a weapon necessary to facilitate a killing is adequate evidence to allow the issue of premeditated intent to go to the jury in a prosecution for first degree murder). No evidence supports Sue's claim that he was so intoxicated that he was unable to form the intent to stab his victims.
RCW 9.94A.602 provides that a knife with a blade longer than three inches is a deadly weapon.
In addition, when police questioned Sue soon after he was arrested at the scene, he was not so intoxicated that he could not acknowledge that he understood his Miranda warnings and waive his right to remain silent. After waiving his rights, Sue expressed his disappointment with his situation and his concern for those whom he had stabbed. He told police about the fight in the parking lot but claimed he was too drunk to remember stabbing his companions. Citing Kruger and Jones, Sue argues this evidence required the court to instruct the jury on the defense of voluntary intoxication. State v. Kruger, 116 Wn. App. 685, 690, 67 P.3d 1147, review denied, 150 Wn.2d 1024 (2003); State v. Jones, 95 Wn.2d 616, 628 P.2d 472 (1981).
Crucially, the evidence here established that Sue armed himself. He did not use a readily available object or tactic of assault, such as a beer bottle and head butt, as were used by the defendant in Kruger, 116 Wn. App. at 689-90, and he did not black out. Moreover, Sue was not so intoxicated that the arresting officers placed him into the drunk tank, like the defendant in Jones, 95 Wn.2d at 622. Sue's post- Miranda statement, that he did not remember stabbing his companions, was a legitimate exercise of his right to refuse to incriminate himself, not a statement about the effects his alcohol consumption had on his ability to form an intent. Thus, the trial court properly ruled that there was insufficient evidence to warrant instructing the jury on the defense of voluntary intoxication. Accordingly, we affirm the jury's verdict on both counts. Self-Defense and Defense of Others
The dissent conflates the second and third elements of the test for whether a voluntary intoxication instruction is proper. The evidence it cites supports the second element, that the defendant consumed alcohol. Everybodytalksabout, 145 Wn.2d at 479. It is undisputed that Sue had been drinking when he stabbed Kaio and Fiatoa. But alcohol consumption alone, even if excessive, does not warrant a voluntary intoxication instruction.
Under the third element, substantial evidence must show that the alcohol consumption affected the defendant's ability to form the required mental state. Everybodytalksabout, 145 Wn.2d at 479. The evidence does not support this element. Other than the fact that Sue was intoxicated, the dissent relies heavily on evidence that Sue was angry and violent. But most violent crimes occur when the defendant is angry and violent. Substantial evidence does not link Sue's temper with his alcohol consumption, nor his alcohol consumption with his ability to form the required mental state. Further, unlike in the cases that the dissent cites, the evidence here did not show that Sue was so incredibly intoxicated that common sense dictates that his ability to form the required mental state was affected. See State v. Rice, 102 Wn.2d 120, 123, 683 P.2d 199 (1984) (defendants drank beer all day, ingested Quaaludes, and had .06 and .10 blood alcohol levels); State v. Brooks, 97 Wn.2d 873, 876-77, 651 P.2d 217 (1982) (defendant staggered around drunk, slurred his speech, ate a spider, had "buggy red" eyes, trembled, carried a bottle of whisky around all day, and fell in the water); Jones, 95 Wn.2d at 622 (defendant drank nine to eleven beers, slurred his speech, and had red and glassy eyes; police placed him in the drunk tank); Kruger, 116 Wn. App. at 689 (defendant blacked out, vomited, slurred his speech, and was impervious to pepper spray).
Sue argues his counsel was ineffective for withdrawing jury instructions regarding self-defense and defense of others and, because the trial court failed to sua sponte instruct the jury, he was deprived of a fair trial. We disagree.
Assistance of Counsel
Sue argues that his counsel rendered ineffective assistance when he withdrew proposed jury instructions on self-defense and defense of others. To establish ineffective assistance of counsel, a defendant must show that (1) his attorney's performance was deficient and (2) he was prejudiced by the deficiency. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Thomas, 109 Wn.2d at 225-26. Deficient performance is that which falls below an objective standard of reasonableness. State v. Horton, 116 Wn. App. 909, 912, 68 P.3d 1145 (2003). In reviewing a claim that counsel was ineffective, we presume that counsel's conduct fell within the wide range of reasonable professional assistance. In re Pers. Restraint of Pirtle, 136 Wn.2d 467, 487, 965 P.2d 593 (1998) (citing Strickland, 446 U.S. at 689).
After the defense rested its case, Sue's counsel withdrew the proposed self-defense and defense of others instructions. Sue's attorney stated, "Your Honor, as much as I'd like to have those instructions, I don't think — I don't think there has been enough provided to the jury to be able to give them." 5 a.m. RP at 476. To instruct the jury on self-defense law, there must be evidence that: "(1) the defendant subjectively feared that he was in imminent danger of death or great bodily harm; (2) this belief was objectively reasonable; (3) the defendant exercised no greater force than was reasonably necessary; and (4) the defendant was not the aggressor." State v. Callahan, 87 Wn. App. 925, 929, 943 P.2d 676 (1997) (citations omitted). Similarly, as to defense of others, there must be evidence related to Sue's defending Randy. See RCW 9A.16.020(3); see also State v. Bernardy, 25 Wn. App. 146, 148, 605 P.2d 791 (1980).
On this record, the defense counsel was not ineffective in withdrawing self-defense and defense of others instructions. Sue never expressed to police, or anyone else, that he felt threatened or that he feared significant bodily harm or death during the fight. Likewise, he never expressed concern that Randy was in imminent danger of death or great bodily harm. In addition, Sue exercised his right to not testify at trial.
The record also establishes that Sue was the aggressor. After his initial confrontation with Fiatoa, Sue went to the kitchen and grabbed a knife. Every witness testified that nobody had threatened Sue with a weapon and that Sue was the only armed person. Several members of the group tried to take the knife away from Sue. As Kaio wrestled the knife out of Sue's hand, Sue's brother, Randy, hit Kaio in the back of the head. As Fiatoa attempted to pull Randy away from the fight, Kaio turned his attention toward Randy and began fighting him. Sue grabbed the knife and stabbed Kaio twice, then charged after Fiatoa and stabbed him once. Sue does not dispute this evidence. He confessed to police that Fiatoa pushed him, he pushed Fiatoa back, and then claimed that, although he recalled the fight in the parking lot just before, he was too drunk to remember the rest of the fight inside.
Because the record shows that Sue was the aggressor and because there is no evidence that Sue feared imminent danger of death or great bodily harm to himself or to his brother, counsel was not ineffective for failing to request self-defense and defense of others instructions.
Trial Court's Sua Sponte Obligation To Instruct The Jury
Initially, both Sue and the State proposed self-defense instructions. Both withdrew the instructions. Sue's counsel withdrew his proposed self-defense and defense of others instructions because he did not think that there was sufficient evidence to warrant giving the instructions to the jury. Sue now alleges that, despite the withdrawal, the trial court erred when it failed to sua sponte instruct the jury on self-defense and defense of others.
But, as discussed above, the evidence was insufficient to support instructing the jury on these theories. A trial court does not err when it declines to instruct the jury on theories that areunsupported by the evidence. See State v. Graeber, 46 Wn.2d 602, 605-06, 283 P.2d 974 (1955), cert. denied, 350 U.S. 938, 351 U.S. 970 (1956) (holding that it is unnecessary for trial court to give instructions where there is insufficient evidence to establish the defense theory, counsel fails to request the instruction, and counsel fails to object to the instructions the court gave); see also State v. Lathrop, 112 Wash. 560, 562, 192 P. 950 (1920) (holding that a trial court does not err in failing to give self-defense instruction where no evidence supports self-defense and where counsel failed to request the instruction). Accordingly, we affirm.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
PENOYAR, J., concur.
The majority holds that there was insufficient evidence to warrant instructing the jury on voluntary intoxication.
To convict Sue of first degree assault, the State had to prove that Sue intended to inflict great bodily harm to Kaio. Because the record shows that Sue consumed alcohol on the day of the assault, the majority essentially holds that there is not substantial evidence that Sue's drinking affected his ability to acquire the intent to inflict great bodily harm to Kaio. RCW 9A.36.011(1); see State v. Everybodytalksabout, 145 Wn.2d 456, 479, 39 P.3d 294 (2002) (where particular mental state is an element of the crime, voluntary intoxication instruction appropriate where substantial evidence shows (1) that the defendant consumed alcohol and (2) that the drinking affected his ability to acquire the requisite mental state) (quoting State v. Gallegos, 65 Wn. App. 230, 238, 828 P.2d 37 (1992)).
The evidence here is sufficient for the jury to have concluded that Sue's drinking affected his ability to intend great bodily harm. In State v. Rice, 102 Wn.2d 120, 123, 683 P.2d 199 (1984), the State had to prove the "knowledge" element of second degree felony murder. Evidence introduced at trial established that the co-defendants drank beer all day, ingested Quaaludes, and had .06 and .10 blood alcohol levels. Rice, 102 Wn.2d at 123. The police concluded that both defendants were intoxicated, and one defendant said that "he was so loaded he didn't feel it" when a car struck him earlier in the evening. Rice, 102 Wn.2d at 122-23. The State's primary witness also testified that he believed the defendants were drunk. Rice, 102 Wn.2d at 122. And although the defendants offered no expert or lay testimony as to how their intoxication affected their mental states, the court held that the evidence warranted an intoxication instruction and that the trial court's failure to so instruct precluded the defendants from effectively arguing their intoxication defense. Rice, 102 Wn.2d at 123.
In State v. Kruger, 116 Wn. App. 685, 690, 67 P.3d 1147 (2003), to convict the defendant of third degree assault, the State had to show that the defendant intentionally struck an officer with an intent to inflict bodily harm. The record showed that the defendant was drunk when he attempted to hit a police officer with a beer bottle and then "head butted" the officer. Kruger, 116 Wn. App. at 689. The defendant also "black[ed]out," vomited at the police station, had slurred speech, and was "impervious to pepper spray." Kruger, 116 Wn. App. at 692. The court held that the evidence of the defendant's intoxication and the effect of his intoxication on both his mind and body entitled him to a voluntary intoxication instruction. Kruger, 116 Wn. App. at 692.
In State v. Brooks, 97 Wn.2d 873, 876-77, 651 P.2d 217 (1982), the State had to prove premeditation in a first degree murder case. The evidence showed that the defendant was "staggering around . . . drunk," he slurred his speech, he ate a spider, his eyes were "buggy red," he was trembling, he had a bottle of whiskey in his hands throughout the day, and he staggered and fell in the water. Brooks, 97 Wn.2d at 877. The court held that the trial court erred in declining to give a voluntary intoxication instruction and noted that "[c]onsiderably less evidence than [that produced at trial] was deemed sufficient to support an instruction on voluntary intoxication in State v. Jones, 95 Wn.2d 616, 628 P.2d 472 (1981). " Brooks, 97 Wn.2d at 877.
In Jones, the State had to prove the defendant intended to commit murder. Jones, 95 Wn.2d at 617, 620. The defendant testified that he had been drinking beer and had drank "nine or eleven" beers on the afternoon before stabbing another man to death during an altercation. Jones, 95 Wn.2d at 622. A witness who talked to the defendant a few minutes after the incident"thought possibly he had been drinking" Jones, 95 Wn.2d at 622. A witness who talked to the defendant in the decedent's apartment an hour before the incident noticed that "[t]he whites of his eyes were red and his eyes were very glassy. His speech was slurred." Jones, 95 Wn.2d at 622. Finally, police placed the defendant in the "drunk tank" when they apprehended him soon after he committed the crime. Jones, 95 Wn.2d at 622. Again, although the defense offered neither expert nor lay witness testimony specifically linking the defendant's intoxication to his ability to form the necessary intent, the court held that the "evidence was sufficient for the court to give the intoxication instruction." Jones, 95 Wn.2d at 623.
Here too, the evidence of Sue's intoxication was sufficient to require the trial court to instruct the jury on voluntary intoxication with respect to Sue's first degree assault charge.
The majority distinguishes Kruger on the basis that Sue did not "black out" like the defendant in Kruger. Kruger, 116 Wn App. at 692. But Sue told police that he was too drunk to remember what happened inside the apartment. And the record does not support the majority's assertion that Sue did not "black out;" rather, the record is silent on whether he "blacked out." Abundant evidence shows that Sue drank considerable amounts of alcohol before committing the assaults. Witnesses testified that Sue was drunk and had been drinking for an extended period of time. Witnesses also said that everyone who went to the bar, including Sue, took shots of alcohol. Sagote said that Sue threw a glass on the floor and broke it at the bar. Sagote also testified that Sue was "out of control" and "very drunk" shortly before returning to the apartment. RP at 85-86. Sipepa testified that everyone at the gathering was "[e]xtremely intoxicated." RP at 153. Tuiletufuga testified that Sue was yelling and punching walls and garbage cans in the apartment complex parking lot. When Sue returned to the apartment complex, he was yelling andpunching garbage cans in the apartment complex parking lot. Further, Sue told police that he fought Fiatoa in the parking lot and that he was too drunk to remember what happened inside the apartment. Every other witness, including Tuiletufuga, testified that Sue fought with Tuiletufuga in the parking lot and fought with Fiatoa inside. Sue's statement supports that his drinking affected his mental state, particularly given that he and Fiatoa had known each other for a "[m]onth or two" and Sue told police that Fiatoa was his cousin.
The majority also distinguishes Kruger on the basis that Sue did not use a readily available object or tactic of assault, such as a beer bottle or head butt. But a weapon's availability has nothing to do with whether alcohol affected a person's ability to form the specific intent to inflict great bodily harm. Merely arming one's self with a weapon does not establish that person's intent while using the weapon.
The majority distinguishes Jones by pointing out that the police did not take Sue to the "drunk tank" like the defendant in Jones, 95 Wn.2d at 622. But the majority fails to explain how a third party's conduct (refraining from placing a defendant in a drunk tank) establishes that a defendant's alcohol consumption did not affect his ability to form the requisite mental state to commit a crime. Furthermore, there is no evidence that police placed the defendants in Rice Brooks, or Kruger in the drunk tank, and the courts in those cases held that defendants' intoxication affected their ability to form a particular mental state. In fact, in Kruger, the officers did not place the defendant in the drunk tank despite the fact that he began vomiting at the jail. Whether a defendant is entitled to the intoxication instruction turns not on a weighing or balancing of the intoxication evidence but on whether the record contains evidence that, even if contradicted, could persuade a reasonable person that alcohol affected the defendant's ability toform the necessary intent. See Brooks, 97 Wn.2d at 876-78 and Kruger, 116 Wn. App. at 691-92.
Finally, given the testimony that Sue was "out of control" and "very drunk" immediately before returning to the apartment complex, and that Sue did not remember who he fought in the parking lot immediately before the assault occurred, it is a stretch to characterize Sue's statement that he did not remember any details about fighting inside of the apartment or stabbing his companions as "a legitimate exercise of his right to refuse to incriminate himself." Majority at 7-8. The fact that Sue expressed remorse and concern when police questioned him approximately 45 minutes after the fight does not mandate the conclusion that his alcohol consumption, as a matter law, did not affect his ability to form the specific criminal intent.
Sue presented sufficient evidence to persuade a fair-minded, rational person that his intoxication affected his ability to form the requisite mental state. See Bering v. SHARE, 106 Wn.2d 212, 220, 721 P.2d 918 (1986) (substantial evidence is evidence sufficient to persuade a fair-minded rational person of the truth of the declared premise) (citing In re Welfare of Snyder, 85 Wn.2d 182, 185-86, 532 P.2d 278 (1975)). Accordingly, the trial court should have instructed the jury on voluntary intoxication, allowing the jury to consider Sue's intoxication as it affected his ability to intend "to inflict great bodily harm." RCW 9A.36.011(1); see Rice, 102 Wn.2d at 123; Brooks, 97 Wn.2d at 877; Jones, 95 Wn.2d at 622-23; and Kruger, 116 Wn. App. at 692. I would reverse and remand for a new trial.