State v. Sampson
699 P.2d 1253
Wash. Ct. App.
1985
Check Treatment

*1 nothing 849, 853-54, 441 P.2d 128 There of the land of the indicate the value in the record to respective parties even increased or decreased or here was Washington agreement. See 1 State Bar affected Property Thus, 15.3, Ass'n, §§ Deskbook 15.4 Real any right refusal must fail as a covenant of first event.

Affirmed. Thompson, JJ., concur.

Munson May Division Two. 6812-5-II. 1985.] [No. Respondent, Kenneth Washington, The State of Appellant. C. Sampson, *2 Oostenbrug, appellant (appointed Terry for counsel W. appeal). for Prosecuting Attorney, Danny Clem, Patrice E.

C. Vlaming, Dеputy, respondent. for appeals ‍​​‌​‌‌​‌​​​‌​​‌​‌​‌​​‌‌‌​​​‌‌‌​​​​‌​​‌‌‌‌​‌‌​‌‌‌‍Kenneth Sampson jury conviction of J.

Reed, deadly degree assault committed while armed with second alleging weapon, on the several instructional errors law of affirm self-defense. We the conviction. shooting dispute

A over 9 cents led to the August p.m. Sometime 8:30 and 9 Conrad. between stopped gas for 1982, Conrad and a friend at Franko's Self filling tank, Service Station near Bremerton. After proceeded gas station's office and handed Conrad into attеndant, defendant, $10, the exact amount he stepped Samp- door, he owed. As Conrad out the believed disagreed, that 9 cents was owed. Conrad son shouted more Sampson Believing they "headed insisted. were but they go pumps. suggested trouble," at the Cоnrad look Although pump gas from which Conrad had obtained Sampson $10, demanded that showed amount due elderly pay argument An An ensued. cents. Conrad Sampson explaining that he intervened, had man then gas pump pumped near Conrad's 9 cents worth Sampson apparently disbelieved him and continued to car. money Conrad. demand subsequent point, versions of the At this two different emerge. According Conrad, some heated after altercation Sampson grabbed exchanges, him twice. second vеrbal pushed Sampson, gun and time, Conrad Samp- ground. sight gun At the aimed it at the they "big, suggested stare," contact son's serious Conrad dispute. apparent police agreement, In to resolve the Sampson keeping his the office moved toward with although him at his side testified he asked at Conrad away. put gas times it inside the station least three Once positioned against register. office, the cash himself side, With his at his he faced Conrad who police. present Samp- attempting to contact the Also were standing attendant, who son's wife and another were register, behind the cash and Conrad's friend. While placed began arguing call, Conrad Conrad again. Conrad became "hostile" testified again grabbed requested his shirt near neck. Conrad away, put Con- but refused. pushed Sampson's get chin "to him out of rad then back gun discharged, hitting face, ..." [his] when the shocked after the the stomach. *3 Testimony according the to Conrad. other attendant description shooting. Conrad's of the corroborated Sampsоn's is, course, of version of the incident substan- "loudly" tially Sampson acknowledged that he different. pay the 9 because he saw Conrad insisted that Conrad cents pumps. testified, different obtain two pumps, lunged him however, for that out at the Conrad attempt after the second twice and he and he Con- Conrad "erratic" believed because standing friend, car, "was was near Conrad's rad's kept his admitted he there for reinforcement." while walked toward the office and inside out requested him holster office, Conrad never but claimed that he became "scared" when it. unexpectedly hung up testified telephone completing before approached police, him. described call to appearing "drunk." Conrad then Conrad as "irrationаl" grabbed both hands. and his throat with beard He testified "[t]hen went off." further testified Conrad," of "no recollection he had conscious and "thinking feeling "frightened" recall but did [Conrad] testified; also she Sampson's kill wife going was [him]." hostility himself from the defending was believed jury disagreed individual. of an intoxicated conviction. returned a the trial are directed to

Sampson's of error assignments He first contends on self-defense. court's instructions inform the instructions failed to trial court's of the absence self-defense. prove beаrs the burden to State court reversible error the trial committed Sampson argues instruction which would have elements by refusing ‍​​‌​‌‌​‌​​​‌​​‌​‌​‌​​‌‌‌​​​‌‌‌​​​​‌​​‌‌‌‌​‌‌​‌‌‌‍beyond a reasonable doubt prove the State required the defendant was unlawful and by used "[t]hat 8).1 instruction necessary." (Proposed is raised a defendant properly When self-defense bears the ultimate bur prosecution, in an assault Acosta, proof on self-defense. State den is, That is obligated 683 P.2d 1069 beyond a the defendant's use prove unlawful, or wrongful justification of force оr without at 623. The excuse. 101 Wn.2d test deter whether the court's instructions constituted error mining . . . understand from the instruc "whether the could whole, as the State bears the burden tions 1Sampson's provided proposed instruction 8 as follows: degree, in the second each of "To convict the defendant the crime of assault proved following doubt: the crime must elements of "(1) day August, knowingly: the 8th That on or about "(a) thing Bryant weapon or or Conrad with a other instrument assaulted harm; likely produce bodily or "(b) grievous bodily harm Conrad with without inflicted weapon; "(2) Kitsap County, Washington; acts That occurred "(3) *4 necessary. by and defendant was unlawful That the used proved you been each of these elements has "If find from the evidence that duty guilty. doubt, your a then will be to return verdict it evidence, yоu if, hand, weighing have a reason- all of the after "On other elements, your duty any to it will he return of these then doubt as to one able guilty." of not verdict on self-defense." Here, 101 Wn.2d at 622. the trial court's instructions 3 and 7 told the jury the State had prove beyond a that Bryant "assаulted" Conrad.2 Instruction 5 defined "assault" force,"3 as an act with "unlawful and instructions 15 and 16 defined the use of "lawful force."4 These instruc- provided 2Instruction 7 as follows: degree, "To convict the defendant of the crime of assault in the second each of fоllowing proved beyond elements of the crime must be a reasonable doubt: "(1) day August, That on or knowingly: about the 8th "(a) weapon Bryant assaulted Conrad with a or other instrument or likely harm; thing produce bodily o r(b) grievous bodily upon inflicted harm Conrad with or without weapon; and "(2) Kitsap County, Washington. That the acts occurred (2) you (l)(a) (l)(b) "If find from the evidence that element and either or have proved beyond doubt, your duty been a reasonable then will it to return a ver- (l)(a) (l)(b) guilty. only dict of Elements are alternatives and one need be (l)(a) proved. unanimously (1) agree proved (b) You must has been or that (l)(a) proved (l)(b) proved you has been or both have been to return a guilty. verdict of hand, if, weighing evidence, you "On the other after all of the have a reason- any elements, (l)(a) bearing able doubt as to one of these in mind that elements (l)(b) only prove beyond doubt, are alternatives and need to a reasonable your duty guilty." then it will be to return a verdict of not provided: 3Instruction 5 act, force, "An assault bodily is an with unlawful dоne with intent to inflict another, injury upon tending, accomplish it, failing accompanied but with apparent present ability bodily injury prevented. to inflict the if not person body "An assault is also an intentional of the or of another. act, force, "An assault is аlso an intentional with unlawful which creates apprehension bodily injury though another a reasonable and fear of even the actor actually bodily injury." did not intend to inflict (WPIC 17.02) provided: 4Instruction 15 charge "It is a defense to a of assault that the forcе used was lawful as defined in this instruction. person "The use of force or toward of another is lawful when used person reasonably injured preventing believes that he is about to be or in attempting prevent against person an offense and when the force is not necessary. more than is person may using employ reasonably "The the force such force and means as a prudent person they appear would use under the same or similar conditions as him at the time.” (WPIC 16.05) provided: Instruction 16

599 whole, conveyed to the tions, adequately as a when read the on self- State bears burden the jury was jury a doubt. The beyond reasonable defense prove beyond a convict, the State must instructed is, assault, use of force a criminal the doubt reasonable in received was effect the defendant unlawful. We find no ‍​​‌​‌‌​‌​​​‌​​‌​‌​‌​​‌‌‌​​​‌‌‌​​​​‌​​‌‌‌‌​‌‌​‌‌‌‍error. requested. instruction he the the next trial court's contends required the the law of self-defense explaining instructions his actions evaluating apply objective standard proper subjective expressed than the standard rather (1977) Wanrow, 221, v. 88 P.2d 548 State Wn.2d 559 .5 (1979) Fischer, 756, v. 23 598 P.2d 742 App. State Wn. 16, considered disagree. The court's instructions 15 We i.e., test, correctly expressed the together, "subjective" use of is the reasonableness the defendant's under the fаcts perspective evaluated from defendant's State v. and circumstances known to defendant. See Painter, 708, 711-12, P.2d App. 27 Wn. 620 1001 also conveyed proper regarding Instruction 16 standard amount of force available to the under a defendant if, taken claim of self-defense. Instructions are sufficient as whole, accurate of the law and contain an statement State v. theory allow the defendant case. argue Johnson, 812, (1981); P.2d 413 App. 29 Wn. 631 Hall, 862, 865, 22 P.2d 554 There App. v. Wn. 593 was no error. court's instruction 17 finally contends that unavailability of self-defense when defendant

on the evidence in constituted a comment aggressor Const, 16.04) (WPIC 17 art. 16. Instruction violation § provided: "Necessary reasonably use of force that no effective alternative to the means tо effect the of force used to exist and amount intended, they reasonably appeared purpose under the circumstances as lawful actor at the time." 4. challenged out in instructions are set footnote

5The 600 necessity unlawful act сreate may by any person No use force thereupon in self-defense acting Therefore, if find you person. another or toward aggressor was the com- provoked acts and conduct then self-defense

that defendant's as a is not avаilable fight, menced defense. in this contention. find no merit We Const, conveying prohibits ‍​​‌​‌‌​‌​​​‌​​‌​‌​‌​​‌‌‌​​​‌‌‌​​​​‌​​‌‌‌‌​‌‌​‌‌‌‍judge art. 16§ the case. merits of attitudes on the personal to the (1980); 1240 385, 389, P.2d Theroff, *6 (1979). An 466, 481, P.2d 789 Foster, 589 v. 91 Wn.2d comment impermissible an not constitute instruction does in the evidence is sufficient when therе the evidence on an accurate the instruction it and support record to Instruc Theroff, supra. v. See State the law. statement of Currie, (State 74 v. the law of 17 is a correct statement tion Heath, v. 35 Wn. (1968); State 197, 443 P.2d 808 Wn.2d discloses (1983)), the record 269, P.2d 922 666 App. was the Sampson indicating that evidence substantial Conrad. in the resulting aggressor 9 a mere involving dispute over a gun Sampson repeated witness's and another cents, despite Conrad's the 9 cents. did not owe that Conrad assertions evidence There was tеmper. he had a admitted Samp away, but put asked repeatedly By the gun. became The of the conflict refused. focus son presence that the admissions, conceded his own inside the Finally, . . . angry." "made [Conrad] police, to call the attеmpted while Conrad station office at his side. cocked Conrad with watched alter subsequent may precipitated have These actions The provoker. aggressor/self- cation, making given jury. properly defense instruction the conviction. We affirm

Worswick, C.J., concurs. affirming concur

Alexander, (concurring)—I J.

601 depart I Sampson. conviction of degree assault second instruc- the court's in its determination majority State has conveyed jury to the adequately tions beyond a reasonable of disproving the burden self-defense Acosta, State v. 101 holding with thе doubt consistent (1984). makes it clear Acosta P.2d 683 1069 unambiguously inform must the court's instructions self- on burden jury that the State has the appar- majority 101 Wn.2d at 621. defense. defi- infer, the court's could ently argues assault, prove beyond the State must nition of This is unlawful. the force used was rеasonable doubt that sufficient under Acosta. However, harmless a reasonable this error was the evidence was insufficient to establish doubt because self-defense, instructing to warrant assault was testimony clearly indicates Sampson's ‍​​‌​‌‌​‌​​​‌​​‌​‌​‌​​‌‌‌​​​‌‌‌​​​​‌​​‌‌‌‌​‌‌​‌‌‌‍self-defensе. implies was an accident. Self-defense gun's discharge 584, 587, Kerr, 544 App. State v. 14 Wn. intentional act. App. Wn. 681 Alferez, P.2d 38 v. 37 Cf. (1984). Moreover, P.2d there was substantial evidence thereby self- making was the aggressor, Currie, 74 Wn.2d unavailable to him. See State defense the trial court's Consequently, P.2d 808 *7 prejudicial. instructional error was not 26, 1985. by Supreme July Review denied Court May Division One. 14257-7-I. 1985.] [No. Jerzy Respondent, Washington, The State Appellant. Gatalski, Janusz