Opinion
No. 37011-5-II.
May 5, 2009.
Appeal from a judgment of the Superior Court for Clark County, No. 06-1-00359-4, Robert L. Harris, J., entered November 8, 2007.
Affirmed by unpublished opinion per Hunt, J., concurred in by Van Deren, C.J., and Houghton, J.
UNPUBLISHED OPINION
Todd E. Gaylor appeals his jury conviction for third degree assault of an emergency room nurse. He argues that (1) the evidence was insufficient to disprove his self defense claim; and (2) he received ineffective assistance of counsel when his trial counsel proposed a jury instruction misstating the law of self defense by requiring that he be in reasonable fear of great bodily harm. We affirm.
Gaylor does not challenge his additional convictions for two counts of misdemeanor harassment.
FACTS I. Background A. Hospital Admission and Initial Contacts
At 12:45 am, on November 20, 2005, Todd E. Gaylor voluntarily admitted himself to the Southwest Washington Medical Center Emergency Room (ER) because he was suffering from blood sugar issues resulting from insulin-dependent diabetes. Gaylor also suffered from depression, had recently broken up with his girlfriend, had not eaten or taken his insulin for more than two days before he arrived at the ER, and told the hospital staff that he was too depressed to care for himself. Gaylor had been to the ER for similar blood sugar issues less than a week earlier and had been treated by Dr. Cornelia Taylor.
After Gaylor arrived at the hospital on November 20, hospital staff hooked him up to an intravenous (IV) line to replenish fluids and attached him to an electrocardiogram (EKG). At 1:20 am, Nurse Katherine Scorvo took over Gaylor's care as he waited for the ER doctor, Dr. Wobig, to assess him. Hospital staff had not administered any medications before Scorvo took over his care. When Gaylor complained of nausea and a sour stomach, Scorvo gave him medications for those conditions; she also started an insulin drip through his IV lines.
At about 2:00 am, after Dr. Wobig had briefly examined Gaylor, Dr. Taylor took over Gaylor's care. Gaylor apparently told Dr. Taylor that he wanted to kill himself or that he intended to stop eating and to stop taking his insulin. Dr. Taylor responded that (1) she could not help him with that and that he needed to see someone else; or (2) if he refused to take care of himself, he would end up killing himself. Dr. Taylor then walked out of the treatment room.
B. Gaylor's Outburst, Lunge toward Nurse Allison, and Struggle with Jeffers
As Dr. Taylor left the treatment room, Gaylor tore the IV lines out of the attached bags and bottles of fluid, and the fluids began to leak into the electrical IV pump. Michael Jeffers, an emergency room technician, was passing by when he overheard the conversation between Gaylor and Dr. Taylor. Jeffers immediately ran into the room, saw Gaylor (on the gurney) rip out his IV lines, stopped the fluids, moved Gaylor away from the electrical equipment, and called for assistance. Another female nurse, Nurse Allison, was in the room when Jeffers entered. Scorvo was outside the room at this time.
Gaylor told Jeffers that if the staff called a "Code Armstrong" or brought restraints into the room, he (Gaylor) would "start gouging eyes out and he would grab the first female that he could grab." Report of Proceedings (RP) at 71. Gaylor repeated these statements more than once. Jeffers was concerned about Gaylor's threats because Allison was standing nearby with her back to Gaylor.
A "Code Armstrong" is a page that indicates a hospital staff member needs immediate assistance or is in danger. Everyone in the area who is certified in the Proact program, which trains employees to deal with volatile situations between staff and patients, responds to this code when it is announced.
As Jeffers was tending to Gaylor's IV lines, someone announced a "Code Armstrong" on the overhead paging system, and a security officer entered the room with a box of restraints. Gaylor was still making threats. Jeffers "reminded him that it was a felony offense to assault a health care worker," told him that they were not going to let anything happen, and explained that he (Jeffers) did not want anyone to get hurt. Gaylor responded that he did not care about the penalties for assaulting healthcare workers and repeated his threats two or three more times.
According to Jeffers, when Gaylor saw the security officer with the restraints, Gaylor ripped off the EKG leads; jumped off the gurney on the side near Nurse Allison, who was about three feet away; and lunged toward her. As Gaylor lunged toward Nurse Allison, Jeffers reached over the gurney, grabbed Gaylor from behind, and pulled him back onto the gurney. The two then struggled, moving out of the treatment room and into the hallway. During the struggle, Gaylor hit Jeffers in the mouth, poked Jeffers in the eye, and bit Jeffers' hand.
According to Nurse Scorvo and Security Officer Adrian Weddle, Gaylor appeared to be trying to leave the treatment room before he started struggling with Jeffers. Nurse Scorvo had been outside in the hallway but could see into the treatment room. Security Officer Weddle was apparently in the treatment room at the time.
After Jeffers pinned Gaylor to the ground and extracted his (Jeffers') hand from Gaylor's mouth, Gaylor bit a male nurse's shoe, leaving behind a "pretty good set of teeth marks." After Gaylor released his teeth from the nurse's shoe, Jeffers and a team of others lifted Gaylor back onto the gurney, placed him in "four-point restraints," and wheeled him back into the treatment room.
Four-point restraints are made from padded nylon straps that buckle and Velcro around a combative person's wrists and ankles; the straps are then used to tie down the restrained individual.
C. Assault on Nurse Scorvo
After the staff restrained Gaylor, Nurse Scorvo resumed his care. Scorvo gave Gaylor a shot of the sedative Atavan to calm him down, reestablished the IV lines so she could administer more insulin and fluids, and rechecked his blood sugar levels. Gaylor stated that he was going to sue the hospital because it was supposed to protect him but had failed to do so; he also repeated that he was going to continue to refuse to take his insulin and to eat and that this was the hospital's fault.
At about 3:30 am, Gaylor's blood sugar levels had dropped sufficiently that Scorvo stopped the insulin drip so she could treat Gaylor's blood sugar issues in manner that would prevent his blood sugar levels from dropping too rapidly. She also administered another dose of sedative through Gaylor's reattached IV lines.
After Scorvo finished administering the sedative, Gaylor grabbed her left hand, and started squeezing it, announcing that he was going to hurt her. At this point, Scorvo had not been attempting to administer any additional medications. When she told him that he was hurting her, he refused to let go. After Gaylor had squeezed Scorvo's hand for about 30 seconds, other staff members helped her to free it from Gaylor's grasp. Scorvo's hand continued to hurt for several more weeks.
II. Procedure
The State charged Gaylor by amended information with two counts of third degree assault, one against Nurse Scorvo (count I) and the other against technician Jeffers (count II); and two counts of misdemeanor harassment (counts III and IV). Gaylor underwent a variety of mental health evaluations.
A. State's Case in Chief
At Gaylor's trial, the State's witnesses testified to the above facts. None of the State's witnesses testified that they had heard Gaylor request that they terminate his medical treatment or that he wanted to leave to go elsewhere for treatment.
B. Gaylor's Self Defense Claim
Gaylor claimed self defense. He admitted that when he checked himself into the hospital, he had not taken his insulin or eaten for several days and he had been drinking alcohol. Gaylor testified that (1) he was unable to care for himself because he was severely depressed; (2) he was aware that his behavior could kill him; (3) he was not suicidal; (4) he had checked himself into the hospital to ensure he received the care he was unable to provide himself precisely because he did not want to die; (5) when Dr. Taylor contacted him, she was already angry because she had recently seen him in the ER under similar circumstances; (6) when he told Dr. Taylor that he was too depressed to care for himself and that he wanted the hospital to take care of him, she told him that she wished he had killed himself because, if he had, she would not have to deal with him now; (7) Dr. Taylor encouraged Gaylor to kill himself, and her responses made him angry; (8) he told Dr. Taylor that he wanted to leave the ER and go to another hospital for a "second opinion"; (9) he expected Dr. Taylor to respond by advising him about leaving the hospital against medical advice, but instead, she left the room; and (10) he ripped his IV lines in half and tore off the EKG leads because he did not want to be treated by a doctor who did not care if he lived or died. Gaylor did not recall Nurse Allison's having been in the room when Dr. Taylor left.
Gaylor asserted that every time he drank alcohol he had vomited.
Gaylor also testified that (1) someone had told him the hospital staff had misdiagnosed him as having overdosed on aspirin, which he denied; (2) he believed the hospital had given him improper treatment on based on this misdiagnosis; and (3) he had intended to discuss this concern with Dr. Taylor, but after her comment, all he wanted to do was leave the hospital and go elsewhere for treatment. Gaylor later testified that he had been told about the improper medication when he was in intensive care, sometime after Scorvo had administered the Atavan, thus contradicting his earlier assertion that before his struggle with Jeffers and his assault on Scorvo, he had been afraid he had been given the wrong medication.
Gaylor further testified that (1) when Jeffers saw him tear out his IV lines, Jeffers ran into the room yelling for "straps"; (2) Jeffers would not listen when he (Gaylor) told him (Jeffers) the straps were unnecessary and offered to explain the situation; (3) he (Gaylor) believed the hospital had given him the wrong medication and, therefore, feared for his life and attempted to run for the door when he heard the "Code Armstrong"; (4) he had intended to leave the hospital even before the "Code Armstrong"; and (5) when he got off the gurney, he was telling staff that he wanted to get a second opinion.
Gaylor admitted that (1) he had struggled with Jeffers, but he denied having made any threats before the staff started to restrain him; (2) once the staff started to restrain him, he was yelling, swearing, and making general threats in an attempt to keep the staff away from him (but he denied threatening to grab anyone or gouge out anyone's eyes); and (3) he had grabbed Scorvo's hand for about 10 seconds, claiming that it was only in self defense to prevent her from reinserting the IV and administering the incorrect medication, which he feared would kill him.
Gaylor recalled saying something to Scorvo when he grabbed her hand and claimed that he had let go when she told him he was hurting her. He further asserted that he had grabbed Scorvo only after he had terminated treatment; but he did not explain how or whether his alleged termination of treatment was actually communicated to or understood by the hospital staff. Gaylor testified that at no time did he intend to hurt anyone.
C. Jury Instructions
Defense counsel proposed and the trial court gave the following jury instruction on self defense:
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.
Clerk's Papers (CP) at 29 (emphasis added) (Jury Instruction 18). Although it is not clear from the record who proposed the instruction, the trial court also defined "great bodily harm" as follows:
Defense counsel based this proposed instruction on former Washington Pattern Jury instruction 17.04. See 11 Washington Practice: Washington Pattern Jury Instructions: Criminal 17.04, author's cmts at 263 (3d ed. 2008).
Great bodily harm means bodily injury that creates a probability of death, or which causes significant serious permanent disfigurement, or that causes a significant permanent loss or impairment of the function of any bodily part or organ.
CP at 25. Gaylor's defense counsel did not object to this instruction.
The trial court also instructed the jury that a self defense claim is not available if the victim is a nurse or health care provider performing her duties and the patient has not terminated treatment. Instruction 15 stated:
Self-defense is not available as a defense if the nurse or health care provider is performing his or her nursing or health care duties at the time of the alleged assault. If these duties have been terminated by the patient by rejection of treatment, the defense is available.
CP at 26.
D. Verdict
The jury found Gaylor guilty of third degree assault of Scorvo and both gross misdemeanor harassment charges. It acquitted him of assaulting Jeffers.
Gaylor appeals the third degree assault conviction.
ANALYSIS I. Sufficiency of Evidence
Gaylor first argues that the evidence was insufficient to disprove his claim of self defense beyond a reasonable doubt. This argument is primarily relevant to whether he was entitled to assert his self defense claim given that his assault was against a nurse, charged under RCW 9A.36.031(1)(i). His argument fails.
We note that the amended information and the judgment and sentence refer to "RCW 9A.36.031(h)." This reference appears to be either a scrivener's error or a reference to former RCW 9A.36.031(h) (1999), the former subsection relating to third degree assault of nurses, physicians, or health care providers.
A. Standard of Review
Evidence is sufficient to support a conviction if, after reviewing the evidence in the light most favorable to the State, any rational trier of fact could have found guilt beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). In considering a defendant's claim of insufficient evidence, we accept the State's evidence and draw all reasonable inferences from the evidence in favor of the State. Id. We consider circumstantial evidence and direct evidence to be equally reliable. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980). And because credibility determinations are for the trier of fact, we defer to the trier of fact on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990); State v. Walton, 64 Wn. App. 410, 415-16, 824 P.2d 533, review denied, 119 Wn.2d 1011 (1992).
The State bears the burden of proving all elements of a crime beyond a reasonable doubt. State v. Teal, 152 Wn.2d 333, 337, 96 P.3d 974 (2004). Because self-defense is an affirmative defense, a defendant may raise the issue by setting forth some evidence that he was defending himself at the time of the alleged assault. State v. Walden, 131 Wn.2d 469, 473-74, 932 P.2d 1237 (1997). Once a defendant offers such evidence, the burden shifts to the State to prove beyond a reasonable doubt that the defendant had no right to defend himself under the circumstances. Id.
B. Assault on Nurse Performing Health Care Duties Where Treatment Not Terminated
Gaylor argues that the evidence showed that when he grabbed Nurse Scorvo's hand, he had clearly and unequivocally rejected medical treatment and, therefore, he had the right to protect himself against further unwanted and possibly negligent medical contact. We disagree.
RCW 9A.36.031(1)(i) provides in part:
A person is guilty of assault in the third degree if he or she, under circumstances not amounting to assault in the first or second degree:
. . .
(i) Assaults a nurse, physician, or health care provider who was performing his or her nursing or health care duties at the time of the assault.
The trial court instructed the jury that self defense was not available if Scorvo was performing her nursing or health care duties at the time of the alleged assault, unless Gaylor had terminated her health care duties by rejecting medical treatment. Scorvo testified that Gaylor did not terminate treatment when she was performing her health care duties; in fact, none of the hospital staff testified to having heard Gaylor communicate that he was terminating treatment. Taken in the light most favorable to the State, this evidence is sufficient to allow a jury to conclude that Gaylor was not entitled to assert that he acted in self defense when he grabbed Nurse Scorvo, despite his contrary claims that he had terminated treatment.
C. Self Defense
Even assuming, without deciding, that Gaylor was entitled to assert self defense, there was sufficient evidence for the jury to reject Gaylor's self defense claim and to support his conviction.
To overcome Gaylor's self defense claim, the State had to show that Gaylor did not reasonably believe he was about to be injured or that he acted with more force than necessary to prevent the injury. Taken in the light most favorable to the State, the evidence does not support Gaylor's assertion that he grabbed Scorvo's hand to prevent what he perceived to be a medical assault against him, primarily because there was no evidence of any medical assault.
Jury Instruction 17 provided:
It is a defense to a charge of assault that the force used was lawful as defined in this instruction.
The use of force upon or toward the person of another 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 necessary.
The person using the force may employ such force and means as a reasonably prudent person would use under those same or similar conditions as they appeared to the person, taking into consideration all of the facts and circumstances known to the person at the time of an prior to the incident.
The State has the burden of proving beyond a reasonable doubt that the force used by the defendant was not lawful. If you find that the State has not proved the absence of this defense beyond a reasonable doubt, it will be your duty to return a verdict of not guilty.
CP at 28.
First, Nurse Scorvo testified that Gaylor told her he was going to hurt her just before he grabbed her hand. Second, Scorvo also testified that Gaylor grabbed her hand after she had finished administering a sedative directly, reattaching the IV lines, and administering a second dose of sedative, not, as Gaylor claimed, while she was attempting to administer additional medical treatment. Issues of witness credibility and the weight of the evidence are the province of the jury, which was entitled to believe Scorvo's version of the events and to discount Gaylor's; we do not review these conclusions of the jury on appeal. Third, Jeffers testified that Gaylor had clearly announced his intent to harm staff and to grab the nearest female staff.
Camarillo, 115 Wn.2d at 71; Walton, 64 Wn. App. at 415-16.
Thus, the record does not support Gaylor's claim that in grabbing Scorvo's hand, he was attempting to prevent her from administering medication or any other "medical assault." On the contrary, the evidence supports both the jury's rejection of Gaylor's self defense claim and the jury's conclusion beyond a reasonable doubt that Gaylor acted with intent to harm Scorvo.
D. First Aggressor and Degree of Force
Gaylor also argues the evidence showed that he was not acting as the first aggressor and that he used a reasonable amount of force to repel a medical assault. Again, we disagree.
As we discuss above, the evidence was sufficient to allow the jury to reject Gaylor's self defense claim by finding that Gaylor was not acting to repel a medical assault but instead with intent to harm the hospital staff. This same evidence was sufficient to allow the jury to conclude that Gaylor was acting as the first aggressor and to reject his self defense claim on that basis. Because the evidence was sufficient to allow the jury to conclude that Gaylor was not acting with intent to repel a medical assault, the level of force Gaylor used is irrelevant.
Accordingly, we hold that the evidence was sufficient to support the jury's rejection of Gaylor's self defense claim.
II. Ineffective Assistance of Counsel: Self Defense
Jury Instruction Gaylor next argues that he received ineffective assistance of counsel when his trial counsel proposed an erroneous "act on appearances" jury instruction that misstated the legal self defense standards by requiring the jury to find that Gaylor feared he was in danger of great bodily harm. We agree with Gaylor that the instruction was improper. See State v. Marquez, 131 Wn. App. 566, 576-77, 127 P.3d 786 (2006). But because Gaylor fails to demonstrate that his counsel's failure was prejudicial, we agree with the State's argument and hold that the error was harmless.
Because Gaylor's counsel proposed the improper instruction, the invited error doctrine precludes Gaylor from challenging the instruction directly. Consequently, he can raise this issue only in the context of an ineffective assistance of counsel claim. See State v. Studd, 137 Wn.2d 533, 550-51, 973 P.2d 1049 (1999).
A. Standard of Review
To prove ineffective assistance of counsel, Gaylor must show deficient performance and prejudice. State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)). "If either part of the test is not satisfied, the inquiry need go no further." State v. Hendrickson, 129 Wn.2d 61, 78, 917 P.2d 563 (1996) (citations omitted), overruled on other grounds by Carey v. Musladin, 549 U.S. 70, 127 S. Ct. 649, 166 L. Ed. 2d 482 (2006). In evaluating counsel's performance, we give great judicial deference to trial counsel's performance and begin our analysis with a strong presumption that counsel was effective. Strickland, 466 U.S. at 689; State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995) (citations omitted). Counsel's performance is deficient when it falls below an objective standard of reasonableness. State v. Stenson, 132 Wn.2d 668, 705, 940 P.2d 1239 (1997) (citations omitted), cert. denied, 523 U.S. 1008 (1998). Proposal of an erroneous instruction that lowers the State's burden, even based on a pattern jury instruction, may constitute ineffective assistance of counsel. State v. Woods, 138 Wn. App. 191, 197-98, 156 P.2d 309 (2007) (citing State v. Aho, 137 Wn.2d 736, 975 P.2d 512 (1999)). Prejudice occurs when, but for the deficient performance, there is a reasonable probability that the outcome would have differed. State v. Reichenbach, 153 Wn.2d 126, 130, 101 P.3d 80 (2004) (citations omitted). Gaylor fails to establish ineffective assistance of counsel under this standard.
B. Defective Instruction — Deficient Performance
"Jury instructions must more than adequately convey the law of self-defense. The instructions, read as a whole, must make the relevant legal standard `manifestly apparent to the average juror.'" State v. LeFaber, 128 Wn.2d 896, 900, 913 P.3d 369 (1996) (citing and quoting State v. Allery, 101 Wn.2d 591, 595, 682 P.2d 312 (1984)). Self defense requires only a "subjective, reasonable belief of imminent harm from the victim." LeFaber, 128 Wn.2d at 899.
Here, based on defense counsel's proposed instruction, the trial court instructed the jury that to show self defense, Gaylor had to have believed he was in "actual danger of great bodily harm," CP at 29 (Instruction 18) (emphasis added). The trial court instructed the jury that "great bodily harm" was "bodily injury that creates a probability of death, or which causes significant serious permanent disfigurement, or that causes a significant permanent loss or impairment of the function of any bodily part or organ." CP at 25 (Instruction 14). As Gaylor contends and the State concedes, these instructions were erroneous.
In Marquez, we addressed an identical set of instructions and determined that the instructions were improper because they misstated the degree of injury a defendant must fear to be entitled to assert self defense. 131 Wn. App. at 572 (adopting Division Three's analysis in State v. Rodriquez, 121 Wn. App. 180, 87 P.3d 1201 (2004)). We noted that the "great bodily harm" standard, as defined in the instructions, lowered the State's burden of proof when compared to the proper instructions, which would require the that the defendant have a merely a reasonable fear of "great personal injury." See Marquez, 131 Wn. App. at 576-57. Under Marquez, the instructions given here were improper; and we can discern no tactical advantage gained by requesting or allowing these instructions.
Therefore, we hold it was deficient performance for defense counsel to have requested Instruction 18 and to have failed to object to Instruction 14.
C. No Prejudice
We must next address the second prong of the ineffective assistance of counsel test — whether counsel's deficient performance was prejudicial.
In light of correct Instruction 15 and the supporting evidence, we hold that there is no reasonable probability that the outcome of Gaylor's trial would have differed had the trial court given the correct self defense instruction and not given Instruction 14. Reichenbach, 153 Wn.2d at 130 (citations omitted).
As noted above, Jury Instruction 15 provided:
Self-defense is not available as a defense if the nurse or health care provider is performing his or her nursing or health care duties at the time of the alleged assault. If these duties have been terminated by the patient by rejection of treatment, the defense is available.
CP at 26. The evidence at trial established that (1) Scorvo was a nurse, and (2) Scorvo was performing her nursing duties when Gaylor assaulted her. Thus, unless Gaylor can show that there was a reasonable probability that the jury could have found that he had terminated treatment, Instruction 15 precluded the jury from considering his self defense claim.
The evidence established that (1) Gaylor had checked himself into the hospital seeking urgent medical attention; (2) Gaylor had told staff repeatedly that he was unable to care for himself and that he needed the hospital to care for him; and (3) Gaylor, a depressed diabetic who had stopped taking his insulin, had demonstrated that he was unable to care for himself by allowing himself to become seriously compromised twice in less than a week. This evidence established that the hospital staff had reason to believe that Gaylor was in need of immediate assistance, that Gaylor was in fact seeking medical treatment, and that there was a strong possibility that Gaylor would be at serious risk to his health if he left the hospital.
Although Gaylor testified that he had attempted to terminate treatment because he was angry with Dr. Taylor, Gaylor also testified that he had attempted to terminate treatment because he feared that the staff was administering improper treatment. He then contradicted himself when he testified that he did not learn of possible improper treatment until after he had assaulted Scorvo. Furthermore, Gaylor never testified that he told Nurse Scorvo that he was refusing treatment; and neither Jeffers nor Scorvo heard Gaylor terminate treatment before he (Gaylor) assaulted Scorvo.
Based on the equivocal nature of Gaylor's testimony and the lack of evidence that the hospital's health care providers ever heard Gaylor terminate medical treatment, we hold that there is no reasonable probability that the trial's outcome would have differed even if the trial court had given the proper self defense instructions. Because, therefore, there was no prejudice, any error was harmless, and Gaylor's ineffective assistance of counsel fails. See Reichenbach, 153 Wn.2d at 130 (citations omitted).
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.
HOUGHTON, J. and VAN DEREN, C.J., concur.