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                                                                                    2114 OCT 28

                                                                                    S tAVh.

                                                                                     BY




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON


                                            DIVISION II


STATE OF WASHINGTON,                                                   No. 44887 -4 -II


                                  Respondent,                    UNPUBLISHED OPINION


          v.




 STEFFAN D. GALE,


                                  Appellant.



          BJORGEN, A.C. J. —   A jury found Steffan Gale not guilty of first degree assault and not

guilty of second degree assault, but found Gale guilty of the inferior- degree offense of third

degree assault. Gale appeals his conviction, asserting that the trial court erred by ( 1) granting the

State' s request to instruct the jury on the inferior- degree offense of third degree assault and ( 2)

failing to accurately instruct the jury on the law of self -defense. Gale also asserts that the

prosecutor committed misconduct at closing argument by misstating the law of self -defense. We

affirm.



                                                 FACTS


          On May 16, 2012, Gale called Timothy Andrews, an admitted drug dealer, to ask if
Andrews knew      where   to obtain   methamphetamine, and   Andrews told Gale to   call   him back later.
No. 44887 -4 -II




A   short   time later Gale'   s   friend, Louisiana,' called Andrews and asked Andrews to sell him some


crack cocaine. After Andrews told Louisiana that he did not have any crack cocaine, Louisiana

asked Andrews to lend him some money. Andrews agreed and the two men met at a gas station.

Andrews took approximately $ 1, 500 from out of his pocket and handed Louisiana $20.


Louisiana then grabbed all of Andrews' s cash as well as Andrews' s keys and fled the gas station.

            Later that evening, Andrews called Gale and asked him to meet in the parking lot of a

Tacoma Safeway grocery store. When the two met at the Safeway, Andrews told Gale that

Louisiana had stolen his money and a set of keys, and he asked Gale to tell him where Louisiana

lived. Gale refused and went inside the Safeway to purchase groceries. Andrews followed Gale

into the store and the two men had a verbal confrontation. Andrews punched Gale and then Gale

stabbed Andrews once in the bicep and once in the abdomen. Gale left the store and threw his
knife away in      an   alley. Andrews     screamed    for   someone    to   call   911.   A Safeway employee

wrapped a shirt around Andrews' s arm to help control the bleeding Andrews drove himself to a

nearby hospital and was later transferred to a second hospital for surgery to treat his wounds.
The State charged Gale with first degree assault and further alleged that Gale was armed with a

deadly weapon when he assaulted Andrews.

            At trial, Andrews testified that after Gale refused to tell him where Louisiana lived, he

asked Gale if he could accompany him inside the Safeway to discuss the matter further and that

 Gale agreed. Andrews further testified that, once in the store, he confronted Gale and tried to

 convince' Gale to tell him Louisiana' s address. Andrews stated that Gale was " looking down at

the food,     but he    was   swinging back   and   forth ... like he   was    going to hit    me."   Report of




 1 Gale testified that Louisiana' s real name is Kevin Jones or Johnson, and that he also goes by
 the nickname Mack.

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No. 44887 -4 -II




Proceedings ( RP)           at    136. Andrews           continued, "    So what I did was I kind of reached back with


my   chin   like this      so    he   wouldn'    t hit   me, and    I tried to hit him first." RP at 136 -37. Andrews


stated that after he hit Gale, Gale swung at him with a knife and stabbed him in the arm.

Andrews said that Gale started running out of the store, but when he started yelling out Gale' s
name, Gale came back and stabbed him in the abdomen.


         In contrast with Andrews' s testimony, Gale testified that after he had refused to give

Louisiana' s address to Andrews, he was unaware that Andrews had followed him inside the

Safeway. Gale stated that he was shopping when he heard Andrews behind him talking on the

phone.      Gale     said   he    overheard      Andrews tell the           person on   the   phone, "[   Gale] better take me


over   there,   or   I'   m go[    ing   to] do something to him, too."            RP at 487. Gale stated that he told


Andrews, " You'            re not go [    ing   to]   do [   expletive],"    and then Andrews hit him. RP at 489.


         Gale also testified that, when Andrews hit him, he had been cleaning his nails with a

knife contained within a small multi -purpose tool. Gale further testified that he did not intend to

stab Andrews, but that he happened to have the knife in his hand when he swung at Andrews in

self defense.
     -               Gale        stated, "   I didn' t know I      was   swinging the knife       until   it   was over."   RP at 516.


            The trial court instructed the jury on the uncharged inferior -degree offenses of second

degree assault and third degree assault over Gale' s objection. Gale proposed the following self -

defense jury instruction based on 11A Washington Practice: Washington Pattern Jury

Instructions: Criminal (WPIC) 17. 04 ( 3d ed. 2008):


                          A person is entitled to act on appearances in defending himself, if he
            believes in good faith and on reasonable grounds that he is in actual danger of
            injury, 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.
No. 44887 -4 -II




Clerk'   s   Papers ( CP)   at   50.   The trial court declined to give Gale' s proposed self -defense jury

instruction, reasoning:

                        And 1.7. 04, the WPIC discussion of that is, that is generally not given unless
             it' s a situation where someone thinks they are go[ ing to] suffer injury from someone
             else; although, it' s later shown to have been an erroneous belief. That' s not really
             what we have here. Because we have here, your theory of the case is that Andrews
             swung and hit your client, and your client responded. So it' s not really he thought
             there was an appearance that he was going to be injured.

RP at 567 -68. The trial court instructed the jury on self -defense based on WPIC 17. 02 as follows:

                     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 of the facts and circumstances
             known to the person at the time of and 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 85. The jury returned verdicts finding Gale not guilty of first degree assault and the inferior -

degree offense of second degree assault, and guilty of the inferior- degree offense of third degree

assault. Gale timely appeals.

                                                    ANALYSIS


                                    I. THIRD DEGREE ASSAULT JURY INSTRUCTION


             Gale first contends that the trial court erred by instructing the jury on the uncharged

 inferior -degree offense of third degree assault absent affirmative evidence that he committed

 only that offense. We disagree.



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No. 44887 -4 -II




          As a general rule, criminal defendants are entitled to notice of the charge they are to

meet at   trial and may be   convicted   only   of   those   crimes charged       in the information." State v.


Tamalini, 134 Wn.2d 725, 731, 953 P. 2d 450 ( 1998). However, RCW 10. 61. 003 provides an


exception to this general rule for uncharged crimes of an inferior degree to a crime charged in the

State' s information. State v. Fernandez- Medina, 141 Wn.2d 448, 453, 6 P. 3d 1150 ( 2000).

RCW 10. 61. 003 provides:


          Upon an indictment or information for an offense consisting of different degrees,
          the jury may find the defendant not guilty of the degree charged in the indictment
          or information, and guilty of any degree inferior thereto, or of an attempt to commit
          the offense.



          Before a trial court may instruct the jury on an uncharged inferior -degree offense, the

following three factors must be met:

            1) the 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."




Fernandez- Medina, 141 Wn.2d at 454 ( quoting State v. Peterson, 133 Wn.2d 885, 891, 948 P. 2d

381 ( 1997)).    Gale challenges the third factor, contending that the evidence presented at trial was

insufficient to support the jury finding that he committed only third degree assault.

          In reviewing whether evidence was sufficient to support a trial court' s decision to instruct

the jury on an uncharged inferior- degree offense, we view the evidence in a light most favorable
 to the instruction' s proponent, here the State. Fernandez- Medina, 141 Wn.2d at 455 -56.

 Evidence in support of an uncharged inferior -degree offense instruction must consist of more


 than the jury' s disbelief that the defendant committed the superior- degree offense and, instead,
  must    affirmatively establish the defendant'       s   theory   of   the case."   Fernandez-Medina, 141




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No. 44887 -4 -II




Wn.2d at 456. In other words, the trial court should instruct the jury on an uncharged inferior-

degree   offense    only "[   i]f the evidence would permit a jury to rationally find a defendant guilty of

the lesser    offense and acquit    him   of the greater."   State v. Warden, 133 Wn.2d 559, 563, 947


P. 2d 708 ( 1997) (   citing Beck v. Alabama, 447 U.S. 625, 635, 100 S. Ct. 2382, 65 L. Ed. 2d 392

 19.80)).    We review de novo a trial court' s decision whether to instruct the jury on an uncharged

inferior -degree offense. State v. Corey, 181 Wn. App. 272, 276, 325 P. 3d 250, review denied,

     P. 3d (       2014).


            Here, the State charged Gale with first degree assault under RCW 9A.36. 011( 1)( a), which


statutory provision provides:


             1) A person is guilty of assault in the first degree if he or she, with intent to inflict
            great bodily harm:
             a) Assaults another with a firearm or any deadly weapon or by any force or means
            likely to produce great bodily harm.

Third degree assault is an inferior -degree offense to first degree assault. State v. Walther, 114

Wn.   App.     189, 192, 56 P. 3d 1001 ( 2002). RCW 9A.36. 031 defines third degree assault in


relevant part as follows:


             1) 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:

             d) With criminal negligence, causes bodily harm to another person by means of a
            weapon or other instrument or thing likely to produce bodily harm.

            Here, Gale' s own testimony provided affirmative evidence to support the jury finding

that he committed third degree assault to the exclusion of first degree assault. Gale testified that

he did not intend to stab Andrews and that he did not realize that he was swinging a knife until

 after Andrews had been stabbed. If the jury believed Gale' s testimony, it could rationally find

that he     acted with criminal negligence, rather      than   with   intent,   when   causing   bodily   harm to
No. 44887 -4 -II




Andrews with a weapon or instrument likely to produce bodily harm. RCW 9A.36.011( 1)( a);

RCW 9A. 36. 031( 1)( d); Warden, 133 Wn. 2d                    at   563.   Accordingly, affirmative evidence

presented at trial permitted the jury to find Andrews guilty of third degree assault and, thus, the

trial court did not err by instructing the jury on the inferior -degree offense of third degree assault.

                                                         II. SELF -DEFENSE


        Next, Gale contends that the trial court erred by failing to accurately instruct the jury on

the law of self -defense. Again, we disagree.


        Jury instructions are sufficient where the instructions allow the parties to argue their

theories of the case, are not misleading, and properly inform the jury of the applicable law when

read as a whole.      State   v.   McCreven, 170 Wn.            App.       444, 462, 284 P. 3d 793 ( 2012),   review




denied, 176 Wn.2d 1015 ( 2013).                    Jury instructions on the law of self -defense " must make the

relevant   legal   standard      manifestly        apparent   to the     average   juror."   McCreven, 170 Wn. App. at

462 ( internal     quotations omitted).             Although a trial court commits reversible error by refusing to

give a proposed instruction where the absence of the instruction prevents the defendant from

presenting his theory of the case, a trial court does not err by refusing a proposed jury instruction

where the subject matter of the proposed instruction is adequately covered in the other

instructions. State v. Kidd, 57 Wn. App. 95, 99, 786 P. 2d 847 ( 1990).

        Gale argues that the trial court erred by refusing to provide the jury with WPIC 17. 04' s

 act on appearances" self -defense instruction because, absent that instruction, the jury was not

informed that it had to .view the incident from Gale' s perspective when evaluating whether his

use of force was justified under the circumstances. Br. of Appellant at 22. In support of this

 argument,   Gale    relies on        State   v.   LeFaber, 128 Wn.2d 896, 913 P. 2d 369 ( 1996),          abrogated on




 other grounds      by   State   v.   O' Hara, 167 Wn.2d 91, 217 P. 3d 756 ( 2009). In LeFaber, our


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No. 44887 -4 -II




Supreme Court reversed the defendant' s first degree manslaughter conviction, holding that the

trial court' s self defense
                    -       jury instruction erroneously required the jury to find actual danger of

imminent harm to       accept                          defense
                                 the defendant' s self -           claim.   128 Wn.2d   at   898 -903. There, the


trial court instructed the jury on the law of self defense
                                                   -       as follows:

                It is a defense to a charge of Murder in the Second Degree, Manslaughter in
        the First Degree, and Manslaughter in the Second Degree that the homicide was
       justifiable as defined in this instruction.
                   Homicide is justifiable when committed in the lawful defense of the
        defendant or any person in the defendant' s presence or company when the
        defendant reasonably believes that the person slain intends to inflict death or great
        personal injury and there is imminent danger ofsuch harm being accomplished.
                   The defendant may employ such force and means as a reasonably prudent
        person would use under the same or similar conditions as they appeared to the
        defendant taking into consideration all the facts and circumstances known to the
        defendant     at   the time and   prior   to the incident.      The force employed may not be
        more than is necessary.
               The State has the burden of proving beyond a reasonable doubt that the
        homicide was not justifiable.


LeFaber, 128 Wn.2d         at   898 -99 ( emphasis     added).   The LeFaber court held that the structure of


the italicized language above permitted an erroneous interpretation of the law of self -defense as

requiring " actual danger" to justify the use of force, because the instruction did not clearly
indicate   a   link between the " defendant['     s]   reasoanbl[ e]   belie[ f]"and an " imminent danger" of


harm. 128 Wn.2d at 901 -03.


        The trial court' s self -defense jury instruction here contained no such infirmity and clearly

indicated to the jury that it was to view the threat of injury from Gale' s perspective when

 evaluating whether his use of force was justified, stating:

                    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

                                                             8
No. 44887 -4 -II




           appeared to the person, taking into consideration all of the facts and circumstances
           known to the person at the time of and prior to the incident.


CP   at   85 (   emphasis added).      Because the trial court' s self -defense jury instruction adequately

conveyed that the jury was to view any threat of injury to Gale from Gale' s perspective under the

circumstances as they appeared to him when evaluating whether his use of force was justified,

the trial court did not err by refusing to further provide the jury with Gale' s requested WPIC.

17. 04 " act on appearances" instruction. Kidd, 57 Wn. App. at 99.

           Moreover, the evidence at trial did not support an " act on appearances" self defense
                                                                                         -

instruction because it was uncontested that Andrews struck Gale moments before Gale stabbed


him. Thus, the question before the jury with regard to Gale' s self -defense claim was not whether

he acted on a reasonable yet mistaken belief that he was about to be injured, but rather, whether

stabbing Andrews was a reasonable and proportionate response to the threat of injury posed by

Andrews striking him. Because the trial court' s self -defense jury instruction adequately

conveyed the law of self -defense and because Gale' s requested instruction was not supported by

the evidence at trial, his claim of instructional error fails.

                                          III. PROSECUTORIAL MISCONDUCT


           Next, Gale argues that the State misstated the law at closing argument by telling the jury,

 You don' t        get   to stab an   unarmed man.   Don' t let him   get   away   with   it." RP   at   691.   In raising

this argument, Gale does not appear to assert that the prosecutor' s statement, alone, constituted


misconduct warranting a new trial. Instead, Gale contends that any error in the trial court' s

refusal to give his proposed self -defense instruction was " exacerbated" by the prosecutor' s

misstatement of           the law. Br. of Appellant   at   27. However,     we   have held that the trial       court
No. 44887 -4 -II




properly instructed the jury on the law of self defense
                                                -       and that Gale was not entitled to his

proposed self -defense jury instruction.

         Although it is not clear from his brief, to the extent that Gale claims that the prosecutor' s


statement constituted misconduct warranting a new trial, we reject that claim as well. A

defendant claiming prosecutorial misconduct must show both improper conduct and resulting

prejudice.      State      v.   Fisher, 165 Wn.2d 727, 747, 202 P. 3d 937 ( 2009). Prejudice exists when


there is a substantial likelihood that the misconduct affected the verdict. State v. McKenzie, 157

Wn.2d 44, 52, 134 P. 3d 221 ( 2006).                      We review a prosecutor' s statements at closing in the

context of the total argument, the issues in the case, the evidence addressed in the argument, and

the   jury   instructions. State              v.   Dhaliwal, 150 Wn.2d 559, 578, 79 P. 3d 432 ( 2003); State v.


Brown, 132 Wn.2d 529, 561, 940 P. 2d 546 ( 1997).                          A prosecutor has wide latitude in making

arguments to the jury and may draw reasonable inferences from the evidence. Fisher, 165

Wn.2d at 747.


             Defense counsel' s failure to object to prosecutorial misconduct at trial constitutes waiver


on appeal unless           the       misconduct       is "` so flagrant and ill-intentioned that it evinces an enduring


and   resulting      prejudice '            and is incurable by a jury instruction. Fisher, 165 Wn.2d at 747

 quoting State        v.   Gregory,           158 Wn.2d 759, 841, 147 P. 3d 1201 ( 2006)) ( internal quotation marks


omitted).       In analyzing a prosecutorial misconduct claim, we " focus less on whether the

prosecutor' s misconduct was flagrant or ill intentioned and more on whether the resulting

prejudice could         have been             cured."    State v. Emery, 174 Wn.2d 741, 762, 278 P. 3d 653 ( 2012).

  The criterion always is, has such a feeling of prejudice been engendered or located in the

 minds   of    the   jury       as   to   prevent a [   defendant] from    having   a   fair trial ? "' Emery,   172 Wn.2d at

 762 ( quoting Slattery v. City ofSeattle, 169 Wash. 144, 148, 13 P. 2d 464 ( 1932)).

                                                                      10
No. 44887 -4 -II




       We discern nothing improper in the prosecutor' s closing argument when viewed in

context. At closing the prosecutor argued:

        Defense counsel] told you that you could use whatever is in your hand. Does that
       mean if someone is in your face yelling at you and you got a gun, you can shoot
       him? I wouldn' t advise that you do that.
                   The instructions are there for a reason, so attorneys, prosecutors and
       defense,      can'   t    interject their        own    personal    values      into the    case.     Read the

       instructions. Don' t let the defendant get away with this. No matter what happened,
       whether you        believe that he         got punched at       first —let' s   say he did get punched and
       he stabbed him and he stabbed in the arm in self -defense. What about this part right
       here? What about the second attack? He pursued him. Don' t let him get away
        with it.
                   He told Mr. Andrews that he                  wasn'   t going to     do [   expletive],   and on that

        day, he was right. Because he is the one who did it. He stabbed a man who was
        unarmed. When you read the self -defense instruction, you are going to see that you
        can' t do that.
                   They     were     at   Safeway,      and you    are going to take into [ account] all the
        factors that   were        involved that        day,   they were inside of Safeway. This wasn' t a
        back alley. They were arguing, but it wasn' t any shouting. Mr. Andrews wasn' t in
        his face. You don' t          get   to   stab an unarmed man.           Don' t let him get away with it.
        Find him guilty. Thank you.

RP at 690 -91 ( emphasis added).


        In stating that, " You don' t            get   to   stab an unarmed man,"        the prosecutor clearly referred to


the self -defense jury instruction' s requirement that the amount of force employed must not

exceed that which a " reasonably prudent person would use under the same or similar conditions

as they appeared to [ Gale] person, taking into consideration all of the facts and circumstances
known" " to [ Gale]    at       the time   of and prior      to the incident," which argument simply rebutted



defense counsel' s argument that Gale' s conduct in stabbing Andrews was a reasonable response

to having been punched. RP at 691; CP at 85. Viewed in context, the prosecutor did not argue
that it could never be justifiable to stab an unarmed assailant, but rather, that the facts and

 circumstances that were present to Gale did not justify his conduct in stabbing Andrews.



                                                                  11
No. 44887 -4 -II




        Moreover, even if the prosecutor had misstated the law on self -defense, such a


misstatement could have been cured by a jury instruction had defense counsel objected at trial.

Therefore, this challenge is waived. Accordingly, we affirm Gale' s conviction.

        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.




                                                        FIORC
                                                                      AC X
 We concur:




 MELNICK, 7.




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