State Of Washington v. Andrew Jens Peter Mortensen, 48518-4

On July 5, 2014 Mortensen and others crossed a river and a fight ensued between Mortensen/Nottingham and Burkett/McDonald; Mortensen displayed and used a gun to stop the fighting.
Mortensen was tried on multiple counts: three second-degree assault counts (two against Burkett, one against McDonald) and harassment; jury convicted him of two assaults against Burkett (one count included a firearm enhancement) and acquitted on the assault of McDonald.
At trial Mortensen testified he acted to aid his friend Nottingham; defense sought a defense-of-another instruction but the court refused to amend self-defense instructions after they had been read to the jury (defense counsel had drafted them without the defense-of-another language).
A defense witness, Aisha Nottingham, remained in the courtroom after testifying despite an ER 615 exclusion; the court barred her from being recalled to corroborate Mortensen about an alleged officer threat.
The jury found Mortensen guilty of two assault counts against the same victim; at sentencing the court imposed concurrent terms plus a 36-month firearm enhancement and a $200 criminal filing fee; the judgment mistakenly said Mortensen pleaded guilty.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether trial court erred by refusing to amend instructions to include defense of another	Mortensen: evidence supported defense-of-another instruction because he acted to aid Nottingham	State: instruction unnecessary or harmless because jury instructions and argument covered self-defense; jury acquitted on McDonald count	Court: refusal was error but harmless as to Burkett counts (and harmless as to McDonald because acquitted)
Whether court abused discretion by excluding recall of defense witness who violated ER 615	Mortensen: exclusion denied his right to present defense (would corroborate alleged officer threat)	State: ER 615 violation; testimony collateral and cumulative; sanction permissible	Court: exclusion not an abuse; right to present defense not violated
Whether defense counsel rendered ineffective assistance by failing to timely submit defense-of-another instruction and allowing ER 615 violation	Mortensen: counsel’s omissions were deficient and prejudicial	State: counsel’s errors were deficient but not prejudicial given harmlessness and limited value of excluded testimony	Court: performance was deficient but Mortensen failed to show prejudice; ineffective assistance claim fails
Whether two convictions for assault against Burkett violate double jeopardy	Mortensen: the two convictions arise from a single course of conduct	State: conceded issue	Court: convictions constitute same course of conduct; vacate lesser count (count one)

State v. Werner, 170 Wn.2d 333 (defendant entitled to instruction on theory if some evidence supports it)
State v. Read, 147 Wn.2d 238 (subjective/objective framework for self-defense)
State v. Penn, 89 Wn.2d 63 (limits on defense of another)
State v. Lynch, 178 Wn.2d 487 (harmless-error standard for constitutional error)
State v. Grier, 171 Wn.2d 17 (standards for ineffective assistance review)
State v. Bennett, 161 Wn.2d 303 (approval of WPIC reasonable-doubt language)
State v. Kalebaugh, 183 Wn.2d 578 (reaffirming WPIC 4.01)
United States v. Hobbs, 31 F.3d 918 (factors for excluding ER 615-violating witnesses)
State v. Villanueva-Gonzalez, 180 Wn.2d 975 (course-of-conduct analysis for multiple assault convictions)
State v. Mutch, 171 Wn.2d 646 (double jeopardy principles)