Opinion
No. 21618-7-III.
Filed: April 29, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Stevens County. Docket No. 02-1-00180-1. Judgment or order under review. Date filed: 10/17/2002. Judge signing: Hon. Rebecca M Baker.
Counsel for Appellant(s), David N. Gasch, Attorney at Law, PO Box 30339, Spokane, WA 99223-3005.
Counsel for Respondent(s), John Gerard Wetle, Attorney at Law, 215 S Oak St, PO Box 390, Colville, WA 99114-0390.
Lyle Ferdinand Humphrey III, appeals from his Stevens County convictions of second degree assault and willful violation of a no contact order. Mr. Humphrey contends (1) his trial counsel gave him ineffective assistance, and (2) the court erred in imposing consecutive sentences for the two crimes. We affirm.
FACTS
The State charged Mr. Humphrey with second degree theft, second degree assault, first degree robbery, and three counts of willful violation of a no contact order, stemming from an altercation with his stepfather, Robert Cleveland, in August 2002. Mr. Humphrey lived and worked in Spokane. On August 27, 2002, Mr. Humphrey called his mother, Linda Cleveland, who lived with Mr. Cleveland in rural Stevens County, and arranged a visit. Mr. Humphrey had no transportation, so his sister drove him as far as Chewelah, where Mr. Cleveland picked him up.
Mr. Humphrey noticed Mr. Cleveland had been drinking and saw an open beer in the car and several more beers behind the seat. Mr. Cleveland purchased another six pack on the way to his house and the two men drank the beers. Then they went to a tavern in Daisy, where they drank more beer and played pool. Mr. Humphrey made an unfriendly comment to another tavern patron (a friend of Mr. Cleveland's) who had bumped him. Outside the tavern, Mr. Cleveland became irate about Mr. Humphrey's comment and the two started arguing.
Mr. Humphrey and Mr. Cleveland gave differing accounts of what happened next. Mr. Humphrey testified that when they arrived at the Cleveland residence and exited the vehicle, Mr. Cleveland called him a name and hit him in the mouth using a key closed in his hand like a weapon. Mr. Humphrey received a cut lip. Mr. Cleveland again came at him swinging his fist, but Mr. Humphrey punched him twice in the chin and knocked him down. Mr. Cleveland denied any altercation occurred outside the house. Both men entered the house. Mr. Humphrey testified he was two steps inside the house when Mr. Cleveland tried to punch him again with the key. Mr. Cleveland testified he just grabbed Mr. Humphrey's arm to tell him to leave and Mr. Humphrey began hitting him. Mr. Humphrey testified Mr. Cleveland initially pushed him against a cabinet. Mr. Humphrey admitted putting Mr. Cleveland on his back and hitting him at least three times until he was unconscious. Linda Cleveland related she emerged from her bedroom to find her husband on the floor beat up, with blood gurgling in the back of his throat and his eye and head swollen. She thought he was dead or dying. Mr. Humphrey explained he purposely knocked Mr. Cleveland out, `Because he hit me the first time, he attacked me the second time. It was — right behind him there's a big counter with a whole bunch of knives in it and I didn't know if he was going to get a weapon and try to stab me or what.' Report of Proceedings (RP) at 139. Mr. Humphrey suffered no injuries other than the previously cut lip, which required five stitches. Mr. Cleveland still suffered occasional dizzy spells at the time of trial. Mr. Cleveland was 53 years old and weighed 135 pounds. Mr. Humphrey was 27 years old and weighed 170 pounds.
After the altercation, Mr. Humphrey fled in the Cleveland vehicle despite his mother telling him not to take it. The State also alleged that Mr. Humphrey took money from Mr. Cleveland's pocket as he lay unconscious. Mr. Humphrey later telephoned his mother three times despite a no contact order.
Regarding self defense and necessary force, the trial court instructed:
INSTRUCTION NO. 14
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 in preventing or attempting to prevent an offense against the person and when the force is not more than is necessary.
The person using the force may employ such force and means as a reasonably prudent person would use under the same or similar conditions as they appeared to the person, taking into consideration all the facts and circumstances known to the person at the time of 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. Clerk's Papers (CP) at 28. This lawful force instruction was based upon WPIC 17.02.
INSTRUCTION NO. 15
Necessary means that no reasonably effective alternative to the use of force appeared to exist and that the amount of force used was reasonable to effect the lawful purpose intended, under the circumstances as they reasonably appeared to the actor at the time.
CP at 29. Instruction No. 15 was based upon former WPIC 16.05, as opposed to a revised version existing at the time of trial. Neither party objected to the instructions.
Both counsel argued the self defense issue in closing. The prosecutor argued even if Mr. Humphrey reasonably believed Mr. Cleveland was going to hurt him when they returned from the tavern, he went too far in beating him unconscious for no good reason. Defense counsel argued Mr. Humphrey was attacked and defended himself by using only that force necessary to get Mr. Cleveland off of him. There was a rack of knives on the counter behind Mr. Cleveland and Mr. Humphrey was worried he might grab one. Mr. Cleveland did not mind using a key and Mr. Humphrey did not want him grabbing a knife. That is why he put Mr. Cleveland `down for the count' so he could leave and not worry about knives. RP at 175.
The jury found Mr. Humphrey guilty of second degree assault and one count of willful violation of a no contact order. The State did not seek an exceptional sentence, but asked that the no contact gross misdemeanor sentence run consecutive to the maximum standard range for the felony assault. The court imposed what is purportedly an exceptional sentence by running a 17-month presumptive sentence for the assault consecutive with a 6-month sentence for the willful violation of a no contact order — a gross misdemeanor. The court wrote on the judgment and sentence findings that Mr. Humphrey's deliberate cruelty to Mr. Cleveland and his unscored misdemeanor history justified an exceptional sentence. Mr. Humphrey appealed.
ANALYSIS A. Assistance of Counsel
Mr. Humphrey asserts he received effective assistance of counsel because his attorney did not object to faulty jury instructions. To establish ineffective assistance of counsel, he must show both deficient performance and resulting prejudice. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, (1984); State v. Hendrickson, 129 Wn.2d 61, 77-78, 917 P.2d 563 (1996). The first Strickland element is met by showing counsel's performance was not reasonably effective under prevailing professional norms. The second test is met by showing a reasonable probability that, but for counsel's unprofessional errors, the result would have been different. A strong presumption exists that counsel's performance was reasonable. State v. Thomas, 109 Wn.2d 222, 226, 743 P.2d 816 (1987).
Washington Pattern Jury Instructions: Criminal 16.05, (WPIC) was revised in 1998 to read:
Necessary means that, under the circumstances as they reasonably appeared to the actor at the time, (1) no reasonably effective alternative to the use of force appeared to exist and (2) the amount of force used was reasonable to effect the lawful purpose intended.
WPIC 16.05 (1998 supp. at 53). The comment to the revision reads:
So that the subjective nature of this standard is entirely clear, the phrase `under the circumstances as they reasonably appeared to the actor at the time' has been moved forward in the instruction, and the numbers (1) and (2) were added.
Id.
Jury instructions are sufficient if they allow the parties to argue their theory of the case, do not mislead the jury, and properly state the applicable law. State v. Tili, 139 Wn.2d 107, 126, 985 P.2d 365 (1999), aff'd, 145 Wn.2d 1026, 42 P.3d 975 (2002). Read as a whole, the instructions on self defense must make the relevant legal standard manifestly apparent to the average juror. State v. Walden, 131 Wn.2d 469, 473, 932 P.2d 1237 (1997).
RCW 9A.16.010 provides:
(1) `Necessary' means that no reasonably effective alternative to the use of force appeared to exist and that the amount of force used was reasonable to effect the lawful purpose intended.
Both former and revised WPIC 16.05 mimic the language of RCW 9A.16.010(1), but also add the missing subjective element by inserting `under the circumstances as they reasonably appeared to the actor at the time.' This follows from the holding in State v. Fischer, 23 Wn. App. 756, 759, 598 P.2d 742 (1979), that the criminal code was not intended to abrogate the common law, in that a self defense instruction must make the subjective necessary force standard manifestly apparent to the average juror. See also State v. Janes, 121 Wn.2d 220, 238, 850 P.2d 495 (1993) (evidence of self defense evaluated from standpoint of reasonably prudent person knowing all defendant knows and seeing all defendant sees).
Here, the instructions sufficiently comported with these principles. The third paragraph of Instruction No. 14 clearly stated the subjective requirement, which was reemphasized in Instruction No. 15. Arguably, revised WPIC 16.05 would have provided an even clearer definition of `necessary' due to placement of the subjective language at the beginning of the definition. But when read together, Instruction Nos. 14 and 15 made it amply clear to the average juror that necessary force is a subjective element to be viewed as would a reasonable person in the defendant's shoes. Failure to use the exact revised necessary force instruction does not necessitate finding prejudicial error. See e.g. Stevens v. Gordon, 118 Wn. App. 43, 53, 74 P.3d 653 (2003) (jury instructions not mandatory). The instructions were not misleading, and allowed Mr. Humphrey to argue his theory of the case. State v. Tili, 139 Wn.2d at 126.
Indeed, in closing argument defense counsel argued strictly from Mr. Humphrey's perspective (as opposed to that of a reasonable person in like circumstances) that presence of knives nearby necessitated beating his key-wielding aggressor Mr. Cleveland unconscious. Under the circumstances, counsel did not render ineffective assistance. This is particularly true when no evidence shows Mr. Cleveland gave any indication he might reach for a knife.
B. Sentence
The proposed issue is whether the trial court erred in consecutively sentencing Mr. Humphrey. However, Mr. Humphrey did not receive an exceptional sentence.
The 17-month sentence for the first degree assault was within the 13-17 month standard range. The Sentencing Reform Act of 1981, chapter 9.94A RCW, does not apply to misdemeanors; it applies solely to felonies. State v. Marks, 95 Wn. App. 537, 539, 977 P.2d 606 (1999); State v. Langford, 67 Wn. App. 572, 587-88, 837 P.2d 1037 (1992). Thus, the court was entirely within its discretion to run the 6-month sentence for gross misdemeanor willful violation of a no contact order consecutive to the felony commitment. State v. Whitney, 78 Wn. App. 506, 517, 897 P.2d 374 (1995); Langford, at 587-88. No reasons were required; thus the court's reasons were superfluous.
Affirmed.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
SCHULTHEIS, J. and KURTZ, J., concur.