                                                                                            Filed
                                                                                      Washington State
                                                                                      Court of Appeals
                                                                                       Division Two

                                                                                      February 6, 2019




     IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                        DIVISION II
 STATE OF WASHINGTON,                                             No. 50411-1-II

                               Respondent,

        v.

 JASON CYRANO BRANCH,                                       UNPUBLISHED OPINION

                               Appellant.

       LEE, J. — Jason C. Branch appeals his second degree assault conviction. He argues the

trial court erred by denying his request for an inferior degree jury instruction on fourth degree

assault. We affirm.

                                             FACTS

A.     INCIDENT

       One evening as Onteryo Booker-Guidry was walking to his car, he noticed four individuals

approaching him. One of the individuals was Branch.

       They grabbed Booker-Guidry, pushed him into the back seat, and drove him to Branch’s

home. Booker-Guidry remained at Branch’s home for approximately two days. During this time,

Branch punched Booker-Guidry in the mouth. Branch punched him “hard,” breaking two of

Booker-Guidry’s teeth. Verbatim Report of Proceedings (VRP) (Jan. 23, 2017) at 164. Branch

also cut Booker-Guidry’s lip, causing it to bleed. Booker-Guidry has a scar from the cut.
No. 50411-1-II


       The State charged Branch with second degree assault.1

B.     TRIAL

       In addition to broken teeth and a bloody lip, Booker-Guidry testified during trial that the

punch to his mouth caused him pain for “a week or two.” VRP (Jan. 23, 2017) at 261. He also

testified that the injury impacted his ability to eat because he could only eat soft, non-hot foods

for “the next week or so.” Id.

       While discussing jury instructions, Branch requested an inferior degree jury instruction

for fourth degree assault. He argued that “there is a factual question as it relates to substantial

bodily harm.” VRP (Feb. 2, 2017) at 1146. The trial court declined to give the proposed jury

instruction for fourth degree assault.

       The jury subsequently found Branch guilty of second degree assault. Branch appeals.

                                            ANALYSIS

       Branch contends his second degree assault conviction should be reversed based on

instructional error. He argues that the trial court erred by not instructing the jury on the inferior

degree offense of fourth degree assault. We disagree.

       We review the trial court’s refusal to give a requested jury instruction for an abuse of

discretion if the decision is based on an issue of fact, as is the case here. State v. Yelovich, 191

Wn.2d 774, 778, 426 P.3d 723(2018). A trial court abuses its discretion if its decision is based on

untenable grounds or reasons. State v. Quaale, 182 Wn.2d 191, 196-97, 340 P.3d 213 (2014).




1
  The State also charged Branch with first degree robbery, first degree kidnapping, second degree
robbery, and felony harassment. The jury found Branch not guilty of these offenses, and they are
not the subject of this appeal.


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No. 50411-1-II


       A defendant is entitled to an instruction on an inferior degree offense if he or she meets the

following requirements:

       (1) [T]he statutes for both the charged offense and the proposed inferior degree
       offense “proscribe but one offense”; (2) the information charges an offense that is
       divided into degrees, and the proposed offense is an inferior degree of the charged
       offense; and (3) there is evidence that the defendant committed only the inferior
       offense.

State v. Peterson, 133 Wn.2d 885, 891, 948 P.2d 381 (1997) (quoting State v. Foster, 91 Wn.2d

466, 472, 589 P.2d 789 (1979); State v. Daniels, 56 Wn. App. 646, 651, 784 P.2d 579, review

denied, 144 Wn.2d 1015 (1990)). At issue in this case is the third prong, or factual prong.

       The factual prong is satisfied if the evidence would permit a jury to rationally find the

defendant guilty of the lesser offense but acquit the defendant of the greater offense. State v.

LaPlant, 157 Wn. App. 685, 687, 239 P.3d 366 (2010). Specifically, we look to whether the

evidence raises an inference that only the inferior degree offense was committed to the exclusion

of the charged offense. State v. Fernandez-Medina, 141 Wn.2d 448, 455, 6 P.3d 1150 (2000).

“[W]hen substantial evidence in the record supports a rational inference that the defendant

committed only the lesser included or inferior degree offense to the exclusion of the greater

offense, the factual component of the test for entitlement to an inferior degree offense instruction

is satisfied.” Id. at 461. In determining whether the evidence at trial was sufficient to support an

inferior degree offense instruction, we view the evidence in a light most favorable to the requesting

party, who is Branch here. Id. at 455-56.

       To convict on second degree assault, the State had to prove that Branch assaulted Booker-

Guidry by recklessly inflicting substantial bodily harm. RCW 9A.36.021(1)(a). “ ‘Substantial

bodily harm’ means bodily injury which involves a temporary but substantial disfigurement, or



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No. 50411-1-II


which causes a temporary but substantial loss or impairment of the function of any bodily part or

organ, or which causes a fracture of any bodily part.” RCW 9A.04.110(4)(b). Branch would be

guilty of fourth degree assault if he assaulted Booker-Guidry under circumstances not amounting

to first, second, or third degree assault. RCW 9A.36.041(1).

       Here, Branch cannot show that only fourth degree assault was committed. All parties agree

that Branch struck Booker-Guidry in the mouth and broke two of his teeth. Booker-Guidry

testified that the injury impacted his ability to eat because he could only eat soft, non-hot foods for

“the next week or so.” VRP (Jan. 23, 2017) at 261. He further testified that Branch punched him

hard and cut his lip, causing it to bleed. Booker-Guidry has a scar from the cut. Booker-Guidry

also testified that the punch to his mouth caused him pain for “a week or two.” VRP (Jan. 23,

2017) at 261.

       Branch argues that breaking teeth is not enough to elevate the injury to substantial bodily

harm. But, in State v. R.H.S., 94 Wn. App. 844, 847, 974 P.2d 1253 (1999), the court held,

“Without question, any reasonable person knows that punching someone in the face could result

in a broken jaw, nose, or teeth, each of which would constitute substantial bodily harm.”

Moreover, Booker-Guidry’s broken teeth in conjunction with his testimony that he was in pain

that lasted over a week, the impact on his ability to eat, and his scar from the assault all support

substantial bodily harm.

       Here, even when viewing the evidence in a light most favorable to Branch, no jury could

rationally acquit Branch of second degree assault and find Branch guilty of only fourth degree

assault. Tenable grounds support the trial court’s decision to not give the requested inferior degree




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No. 50411-1-II


instruction. Thus, the trial court did not abuse its discretion in declining to instruct the jury on the

inferior degree offense of fourth degree assault.

        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 in accordance with RCW 2.06.040,

it is so ordered.



                                                        Lee, J.
 We concur:



 Johanson, J.




 Maxa, C.J.




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