Opinion
No. 38692-5-II.
March 9, 2010.
Appeal from a judgment of the Superior Court for Lewis County, No. 07-1-00798-3, Nelson E. Hunt, J., entered December 12, 2008.
Affirmed by unpublished opinion per Penoyar, A.C.J., concurred in by Bridgewater and Armstrong, JJ.
Gary Michael Werner appeals his conviction of second degree assault with a firearm enhancement, claiming the trial court erred in refusing to give the jury his proposed self defense instructions. We disagree. Because Werner claimed that he discharged his weapon accidentally, the trial court properly refused his proposed self defense instructions. Thus, we affirm.
Facts
Werner and Daniel Barnes own abutting rural lands in Lewis County. Ongoing disputes developed between these neighbors involving their boundary line, pigs, dogs, and target shooting.
On November 16, 2007, Colby Galpin was at Barnes's property building a doghouse when he heard Barnes's dogs barking. Galpin went down an easement running between the two properties and saw all seven dogs barking at Werner. Galpin yelled at the dogs to stop and six of them walked away, but a pit bull-cross puppy stayed. Werner told Galpin to move the fence Barnes had erected on the easement because it was his easement not Barnes's.
In response to Barnes's fence building, Werner had placed a makeshift wooden fence across the easement to prevent Barnes from using it. He told Galpin that he would "kick [their] ass if [they] took down these boards he put up across the bridge." 1 Report of Proceedings (RP) at 103. Galpin said that Werner then pulled a gun from his holster and a "split second" later, it went off, striking the ground two to three feet in front of Galpin. 1 RP at 104. Werner then tossed the gun to the ground and exclaimed, "see what you made me do" and said he was going to call the sheriff. 1 RP at 106. Galpin explained that Werner fired his gun long after the dogs had stopped barking at him.
Barnes was in his living room when he heard the gunshot. He said that preceding it, he heard Warner yelling, "You SOB, if you move my boards again. . . ." Then he heard a gunshot and Werner saying, "I'll kill you." 2 RP at 74.
Werner left, contacted the police, and met Detective Timothy English at a nearby convenience store. There, Werner told English that Barnes was trying to steal his property, that Barnes's dogs were very threatening, and that he pulled out a gun and was trying to dial 911 when his gun discharged. English testified that Werner was unsure about why his gun had discharged. Werner admitting pulling back the hammer but claimed that he did not pull the trigger. He said that he was juggling his telephone, camera, and the gun to call 911 when his gun went off, shooting straight down into the ground.
The State charged Werner with harassment and second degree assault with a firearm enchancement.
A violation of RCW 9A.46.020(2)(b)(ii).
A violation of RCW 9A.36.021(1)(c); 9.94A.510 (firearm enhancement).
Werner testified at trial that he had several incidents with Barnes's dogs and was concerned about his safety when near them. He described one instance where Barnes was with a county inspector and the dogs approached him barking (a Rottweiler, a pit bull, and two mixed breed pit bulls). Werner claimed that he yelled for at least 10 minutes at Barnes before Barnes finally called off his dogs. In another incident, in the late evening, a pit bull charged his car as he was letting his dog out of the car. He explained that he quickly jumped back into the car with his dog, closed the door, and the pit bull ran into his car. He described a third incident where he was in his bus cleaning it out when a pit bull approached, began barking, and tried to jump up into the bus. This continued until he heard someone call the dog back. Werner also explained that more than once when he was working on his property, the dogs had approached him, barking and surrounding him.
According to Werner, Barnes had told him that he needed to put up a fence to contain his dogs, explaining on one occasion that his large dogs could kill Werner's dog. After these incidents, Werner began carrying a gun on his property, planning to use it to scare the dogs away if necessary. He said that the dogs were getting "more notably aggressive to me and I didn't feel safe around them anymore." 2 RP at 146.
On November 16, Werner arrived at the property about three o'clock in the morning and noticed that Barnes had put a fence up across the easement. Later that morning, rather than taking down Barnes's fence, Werner decided to put his own fence up, blocking a bridge that Barnes used to access his pig barn. He had hoped that this would cause Barnes to see that they needed to resolve the property dispute before anyone put up a permanent fence. When he returned about an hour later to take pictures, someone had moved his fence. About that same time, a pit bull arrived and several other barking dogs followed. Werner explained that the pit bull "had its hair up and teeth showing and it was slowly walking towards me taking slow steps." 2 RP at 174.
He said he then took his gun out of its holster, held the gun in the dog's direction, and pulled the hammer back. Werner explained that he only wanted to scare the dogs off and would fire the gun to do so if necessary. He yelled out to Galpin to call off his dogs and when Galpin appeared, he lowered his weapon, but Galpin and the pit bull continued toward him:
That's when I panicked and I felt I needed to call 911. And I took the camera and put it on top of the gun and had it to my side and I dialed 911. But I have arthritis in my thumb, I couldn't push the talk button because it is too close to my finger. I set the gun and camera down so I would have both arms, hands. As I was attempting to let go of it, it went off next to the — into the ground. . . . I reached up, hit the talk button, it registered on the phone but didn't connect. There was no service at that point so it didn't connect to anybody. . . . I picked up my gun and camera, ran to the other end of the property where my car was parked.
2 RP at 176-77.
Werner asked the trial court to instruct the jury on self defense. The trial court refused his proposed instructions, explaining later:
And by the defendant's own admission, this is not a self-defense case. He denied doing any action which would constitute an assault or any action that can be considered in self-defense. This was his own testimony which I noted when he said it. But even if he claimed to have acted in self-defense, which I feel he did not, such a subjective belief must be objectively reasonable and as a matter of law under the facts of this case, his belief was not objectively reasonable.
RP (12/12/08) at 7.
The jury found Werner not guilty of harassment but guilty of second degree assault, returning a special verdict that he was armed with a firearm at the time he committed the assault.
analysis
I. Self Defense
Werner argues that the trial court erred in refusing his proposed self defense instructions 10, 11, and 12 (and related definitional instructions). He argues that the evidence supported this defense and thus the court had an obligation to provide the instructions.
These proposed instructions provided:
Self defense or defense of another person is a complete defense to assault.
If there is evidence of self defense or defense of another, the State must prove beyond a reasonable doubt that defendant was not acting in self defense. If the State fails to carry this burden of proof, then you must return a verdict of not guilty.
Clerk's Papers (CP) at 88 (proposed instr. 10).
A person is entitled to act on appearances in defending himself; if that person believes in good faith and on reasonable grounds that he is in actual danger of great bodily harm, although it afterwards might develop that the person was mistaken as to the extent of the danger. Actual danger is not necessary for the use of force to be lawful.
CP at 89 (proposed instr. 11).
It is lawful for a person who is in a place where that person has a right to be and who has reasonable grounds for believing that he is being attacked to stand his ground and defend against such attack by the use of lawful force. The law does not impose a duty to retreat.
CP at 91 (proposed instr. 12).
Jury instructions must allow the parties to argue their case theories and properly inform the jury of the applicable law. State v. Riley, 137 Wn.2d 904, 909, 976 P.2d 624 (1999) (quoting State v. Bowerman, 115 Wn.2d 794, 809, 802 P.2d 116 (1990)). Each party may instruct the jury on its case theory as long as evidence exists to support that theory. Failure to instruct on a defense theory when evidence supports it constitutes reversible error. State v. Williams, 132 Wn.2d 248, 260, 937 P.2d 1052 (1997).
A trial court may refuse to give a self-defense instruction only where no credible evidence supports the claim. State v. McCullum, 98 Wn.2d 484, 488, 656 P.2d 1064 (1983). When deciding this issue, the trial court reviews the entire record in the light most favorable to the defendant. State v. Callahan, 87 Wn. App. 925, 933, 943 P.2d 676 (1997).
Proving self defense requires evidence that (1) the defendant subjectively feared imminent danger of death or great bodily harm, (2) the defendant's fears were objectively reasonable, (3) the defendant used no greater force than reasonably necessary, and (4) the defendant was not the aggressor. Callahan, 87 Wn. App. at 929. Imminent danger need not actually exist as long as a reasonable person in the defendant's situation could have believed it existed. State v. Walker, 136 Wn.2d 767, 772, 966 P.2d 883 (1998). Imminence does not require an actual physical assault; a threat can support a finding of imminence where the defendant actually and reasonably believed the threat would be carried out. State v. Janes, 121 Wn.2d 220, 241, 850 P.2d 495 (1993). If some evidence supports all elements of self defense, then the court must permit the presentation of self defense instructions to the jury. Walker, 136 Wn.2d at 772-73; Williams, 132 Wn.2d at 259-60.
When analyzing a trial court's refusal to permit jury instructions on self defense, the standard of review depends on whether the trial court based its decision on a matter of law or of fact. Walker, 136 Wn.2d at 771. If the refusal is based on a matter of fact, we review for an abuse of discretion. Walker, 136 Wn.2d at 772. If the refusal is based on a matter of law, we review de novo. Walker, 136 Wn.2d at 772. We review de novo a trial court's finding that no reasonable person in the defendant's shoes would have acted as the defendant acted. State v. Read, 147 Wn.2d 238, 243, 53 P.3d 26 (2002).
Werner relies heavily on Callahan, where this court found that the defendant was entitled to a self defense instruction even though the actual shooting was accidental. We distinguish Callahan here because Werner was facing a threat from the dogs, not Galpin.
While driving to work, Callahan became incensed when another driver cut in front of him. Callahan pulled beside the vehicle and a hostile exchange ensued between Callahan, the other driver, and the other driver's two passengers. 87 Wn. App. at 928. Eventually, the two cars pulled into a parking lot and when the three men exited their car, Callahan pulled out a handgun and got out of his car. Callahan, 87 Wn. App. at 928. Callahan cocked the gun and he and the victim approached each other. When the victim tried to grab the gun, it discharged into his hand. Callahan, 87 Wn. App. at 928.
The trial court refused Callahan's request for a self defense instruction and this court reversed, holding that a claim that a shooting is accidental does not preclude a defendant from claiming self defense if there is evidence of both. The court found persuasive an Illinois court explanation that if the defendant's actions preceding the shooting were intentional but the shooting was unintentional, the defendant could claim self defense. On the other hand, the court held that if all of the alleged acts prior to the shooting were accidental or nonforcible, a defendant could not claim self defense. Callahan, 87 Wn. App. at 931 (quoting People v. Robinson, 163 Ill. App. 3d 754, 762, 516 N.E.2d 1292, 1298 (1987)).
This court reasoned that Callahan presented evidence to support his subjective fear for his own safety and that he displayed the weapon in order to deescalate the situation. This court found this subjective belief objectively reasonable and because the force he used was no greater than necessary and he was not the aggressor, Callahan was entitled to self defense instructions. Callahan, 87 Wn. App. at 933.
Here, there was ample evidence presented at trial that Barnes's seven dogs were uncontained, that they barked at Werner on several occasions, and that at least one of the dogs was a pit bull. Werner testified that he did not feel safe working on his own property and began carrying a gun to protect himself. He testified that on November 16, Barnes's dogs again approached and surrounded him, barking and acting aggressively, and that he took out his gun, pulled back the hammer, and intended to fire the weapon if Galpin did not call off the dogs or the dogs attacked. These fears were objectively reasonable, he exhibited no more force than was necessary, and he was not the first aggressor. Taking the evidence in a light most favorable to him, Werner was entitled to have instructions explaining his right to defend himself against an attack by the dogs. Callahan, however, carries Werner no further.
Werner was faced with two distinct threats: the dogs and Galpin. In Callahan, 87 Wn. App. 925, and Robinson, 163 Ill. App. 3d 754, the defendants accidentally assaulted the same person they were defending themselves against. Those defendants were entitled to argue that their actions preceeding the assault were proper self defense.
Similarly, as we stated above, Werner was entitled to instructions that would allow him to argue that the force he used against the dogs (drawing his gun and pulling the hammer back) was reasonable. But Werner did not offer self defense instructions concerning the dogs; he offered general self defense instructions so that he could argue self defense in his actions toward Galpin.
The State is correct that Werner was not entitled to instructions that the force he allegedly used against Galpin (firing the gun in Galpin's direction) was reasonable. There was no evidence that Galpin presented any direct threat to Werner in that circumstance and, certainly, Werner was not entitled to fire toward Galpin because of what the dogs were doing. Thus, we find no error in the trial court's refusal to instruct on self defense.
As this case illustrates, counsel must be clear about what threat the proposed self defense instructions apply to and why those instructions are necessary. Had the court given Werner's proposed instructions, the jury would no doubt have been confused about how to apply them.
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.
BRIDGEWATER, J., ARMSTRONG, J., concur.