                                                                                                Filed
                                                                                          Washington State
                                                                                          Court of Appeals
                                                                                           Division Two

                                                                                          February 7, 2017




      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II
    STATE OF WASHINGTON,                                             No. 48112-0-II

                                Respondent,

         v.

    SHAWN MICHAEL TILLERY,                                     UNPUBLISHED OPINION

                                Appellant.

        WORSWICK, P.J. —A jury returned verdicts finding Shawn Tillery guilty of second

degree assault, violation of a no-contact order, and third degree theft.1 Tillery appeals from his

second degree assault conviction and sentence, asserting that the trial court (1) erred by refusing

to instruct the jury on self-defense, (2) failed to enter required written findings and conclusions

in support of an exceptional sentence, and (3) improperly calculated the length of his

incarceration term for that offense. Tillery also requests that we waive the imposition of costs on

appeal should the State prevail. We affirm Tillery’s second degree assault conviction and

sentence but exercise our discretion to waive appellate costs in this matter.




1
  The jury could not reach a unanimous decision on Tillery’s charge of first degree burglary. The
trial court declared a mistrial as to that count, and Tillery later pleaded guilty to residential
burglary in exchange for the State dropping the first degree burglary charge. Tillery does not
appeal from his residential burglary conviction.
No. 48112-0-II


                                               FACTS

         Tillery and Corrina Twisselman dated for approximately two and a half years and are the

parents of LT; Twisselman also has an older son, CM.2 Twisselman ended the relationship in

January 2014 and stated that she delivered Tillery’s belongings to his mother’s house that same

month. On January 14, 2014, Twisselman was named as the protected party in a domestic

violence no-contact order entered against Tillery. The no-contact order prohibited Tillery from

having any contact with Twisselman and prohibited him from being within 500 feet of her

residence. Tillery was aware of the no-contact order and of its prohibitions.

         On March 16, 2014, Twisselman spent the evening with CM and her then boyfriend,

Christopher Martin. While the group ate dinner at a restaurant in Tacoma, Twisselman saw

Tillery’s brother. Shortly thereafter, Twisselman started receiving text messages from Tillery

stating that he was coming to the restaurant. Martin was outside the restaurant when Tillery

arrived. Tillery confronted Martin. Twisselman came outside, exchanged words with Tillery,

and called the police. Tillery left before the police arrived.

         After picking up LT from Tillery’s mother’s home, Twisselman, Martin, and the children

returned to Twisselman’s apartment. CM slept in his bedroom, while Martin and Twisselman

slept in the master bedroom with LT sleeping in a crib located next to the bed. Twisselman

locked her bedroom door before going to sleep. Twisselman stated that she also routinely locked

her apartment’s front door and sliding back door every evening. Shortly after 3:00 a.m. the next

morning, Tillery began sending Twisselman hostile text messages, to which she did not respond.




2
    At the time of trial, LT was 2 years old and CM was 8 years old.

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No. 48112-0-II


       Twisselman stated that she woke up to her bedroom door being kicked in and a light

being turned on. Twisselman saw Tillery standing in her bedroom doorway holding a kitchen

knife with a seven-inch blade. She woke Martin and grabbed her phone to call 911. Tillery then

lunged at Martin and a struggle ensued between the men, during which Tillery stabbed Martin

several times as Martin was defending himself.

       Martin stated that he woke up to a loud noise, sat up, and saw Tillery standing in the

doorway. Tillery asked Martin, “[W]hat the [expletive] are you doing here?” Report of

Proceedings (RP) at 198. Martin heard Twisselman yell, “He has a knife.” RP at 198. Martin

then saw Tillery raising the knife up in his right hand, at which point Martin lunged for Tillery’s

right arm to try to control the knife. During the ensuing struggle between the men, Martin was

stabbed once in his armpit, once on top of his left shoulder, twice behind his left shoulder, and

once on the back of his neck. The knife blade broke off the handle when it struck Martin’s

shoulder bone. The two men continued to wrestle around the apartment until Tillery eventually

ran away. While Martin was waiting for an ambulance to arrive, he noticed that some of his

possessions had been taken, including his laptop computer.

       Police officers responded to Twisselman’s apartment complex shortly after 5:00 a.m.

While outside the apartment, Officer Mark Waters saw a shirtless man matching Tillery’s

description walking “light-footed” as if trying to avoid making noise. RP at 240. Waters lost

sight of the suspect, but eventually saw the man, later identified as Tillery, hiding in some

bushes. After Tillery was arrested, he told Officer Kenneth Smith that “he knew he was in

trouble and he knew he should not have gone to the apartment.” RP at 264. Tillery also told

Smith that he entered the apartment through an unlocked back sliding door, saw an army uniform


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No. 48112-0-II


on the living room floor and thought, “What the [expletive],” before entering the back bedroom

where a male had a knife that they fought over. RP at 264-65. When Smith asked Tillery where

the knife was at, Tillery told him he “didn’t know where the knife was at because he didn’t stab

anybody.” RP at 265. Police later searched Tillery’s vehicle and found items taken from

Twisselman’s apartment, including Martin’s laptop computer.

       The State charged Tillery with first degree burglary, second degree assault, violation of a

no-contact order, and second degree theft. The matter proceeded to jury trial at which

Twisselman, Martin, and police officers testified consistently with the facts above.

       Tillery testified about his version of events. According to Tillery, he was living with

Twisselman in her apartment on the date of the incident, notwithstanding the no-contact order

prohibiting such conduct. Tillery’s brother and mother also testified that Tillery was living at

Twisselman’s apartment. Tillery admitted that he was angry about Twisselman being out with

another man that evening and that he had confronted them at the restaurant. He stated that he

went to the apartment early that next morning to retrieve some of his possessions. He explained

that he went to retrieve his possessions early the next morning because he did not want to argue

with Twisselman. Tillery admitted that he did not have a front door key and that he entered the

apartment through the back sliding door, which he stated did not have a functioning lock. Tillery

took a laptop computer and other items that he mistakenly believed belonged to him. He brought

those items to his car and then returned to the apartment to retrieve some of his clothes from

inside of Twisselman’s bedroom. On his way to the bedroom, Tillery saw Martin’s army

uniform lying on the floor. Because Twisselman’s bedroom door was locked, Tillery retrieved a

knife to pry it open.


                                                 4
No. 48112-0-II


       Tillery testified that he pried the bedroom door open with the knife, turned on the light,

and saw Martin lying naked on the bed next to Twisselman. Tillery yelled, “What the hell is

going on?” RP at 606. Martin sat up and tackled him. Tillery then pushed Martin into a wall,

saw that Martin’s neck had been cut, and tried to run away, but Martin kept trying to tackle him

and hold him down. Tillery eventually dropped the knife and ran outside, at which point his shirt

ripped off when it got tangled in some sticker bushes. Tillery stated that he had lied to officers

about Martin having the knife because he “saw the cut on [Martin’s] neck . . . [and] didn’t want

to make it seem intentionally that [he] inflicted some damage to him.” RP at 619. Tillery

admitted that he did not provide Twisselman’s address as his own when he was booked at jail,

stating that he instead provided his aunt’s address because of the no-contact order.

       Defense counsel requested the trial court to instruct the jury on the law of self-defense,

which the trial court denied. 3 The jury returned verdicts finding Tillery guilty of second degree

assault and violation of a no-contact order. Regarding the second degree assault charge, the jury

returned special verdicts finding that Tillery committed second degree assault by assaulting

Martin with a deadly weapon, that he was armed with a deadly weapon when committing the

crime, and that he committed the crime shortly after being released from incarceration.

Additionally, the jury found Tillery not guilty of second degree theft but guilty of the lesser-

included crime of third degree theft. The jury could not reach a unanimous verdict on the second




3
  Although the trial court did not explicitly state on the record its reason for declining the
instruction, it appears from the context of the attorneys’ arguments that its ruling was based on a
factual dispute.


                                                  5
No. 48112-0-II


degree burglary charge, and the trial court declared a mistrial as to that charge. Tillery appeals

from his second degree assault conviction and sentence.

                                            ANALYSIS

                                         I. SELF-DEFENSE

       Tillery first contends that the trial court erred by refusing to provide a self-defense jury

instruction. Because the evidence at trial, when viewed in a light most favorable to Tillery, did

not support instructing the jury on self-defense, we disagree.

       A defendant is entitled to have the jury instructed on self-defense only if there is some

evidence to support the theory. State v. Walden, 131 Wn.2d 469, 473, 932 P.2d 1237 (1997). In

determining whether some evidence supported instructing the jury on self-defense, we review the

entire record in a light most favorable to the defendant. State v. Callahan, 87 Wn. App. 925,

933, 943 P.2d 676 (1997).

       There are three elements to a claim of self-defense: (1) the defendant subjectively feared

imminent danger of bodily harm, (2) the defendant’s belief was objectively reasonable, and (3)

the defendant exercised no more force than reasonably necessary. State v. Werner, 170 Wn.2d

333, 337, 241 P.3d 410 (2010). If the evidence fails to support any one of these elements, the

defendant is not entitled to present a self-defense theory to the jury. State v. Walker, 136 Wn.2d

767, 773, 966 P.2d 883 (1998). With regard to the third element, a defendant may only use as

much force in self-defense as “what a reasonably prudent person would find necessary under the

conditions as they appeared to the defendant.” Walden, 131 Wn.2d at 474.

       Additionally, “a self-defense instruction is not available to an aggressor.” State v.

George, 161 Wn. App. 86, 96, 249 P.3d 202 (2011) (citing Walden, 131 Wn.2d at 482


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No. 48112-0-II


(Talmadge, J., dissenting)); see also State v. Currie, 74 Wn.2d 197, 198, 443 P.2d 808 (1968) (In

prosecution for assault, trial court properly refuses to instruct on self-defense where “[t]he

undisputed evidence clearly establishes that the defendant was the aggressor and precipitated the

incident in question.”); State v. Davis, 64 Wn. App. 511, 518-19, 827 P.2d 298 (1992) (Self-

defense is unavailable to a defendant whose “actions precipitated or provoked the altercation

which necessitated his use of force.”), reversed on other grounds, 121 Wn.2d 1, 846 P.2d 527

(1993).

          Our standard of review depends on the reason the trial court refused to grant Tillery’s

requested self-defense instruction. Walker, 136 Wn.2d at 771. If the trial court declined the self-

defense instruction based on a factual dispute, we review its decision for abuse of discretion.

Walker, 136 Wn.2d at 771-72. But if the trial court declined the self-defense instruction based

on a ruling of law, we review its decision de novo. Walker, 136 Wn.2d at 772. Here, it appears

that the trial court refused Tillery’s proposed self-defense instruction based on the factual

determination that he was the aggressor to an altercation necessitating his use of force.

Accordingly, we review the trial court’s decision to decline the self-defense jury instruction for

an abuse of discretion.

          Tillery contends that, when viewed in a light most favorable to him, the evidence at trial

could establish that he did not strike Martin with the knife until after Martin had lunged at him in

the bedroom. He thus claims that he was entitled to a self-defense instruction so the jury could




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No. 48112-0-II


determine whether his use of force was reasonable in light of being lunged at by Martin.

Tillery’s claim fails for two primary reasons.4

       First, even viewing the evidence in a light most favorable to Tillery, his admitted conduct

clearly “precipitated or provoked the altercation which necessitated his use of force.” Davis, 64

Wn. App. at 518-19, reversed on other grounds, 121 Wn.2d 1. Tillery admitted that he was

upset and had confronted Twisselman about her being out with another man, and it is

uncontested that he had sent her hostile text messages shortly before entering her apartment.

Although claiming that he lived at Twisselman’s apartment in violation of the no-contact order,

Tillery also admitted to entering the apartment through the sliding back door because he did not

have a key. Finally Tillery admitted that, after seeing Martin’s army uniform on the floor, he

broke into Twisselman’s locked bedroom with a knife and yelled at Martin while he lay naked

and sleeping. This admitted conduct clearly provoked Martin’s response in lunging at Tillery

and, thus, Tillery was not entitled to claim self-defense. Currie, 74 Wn.2d at 198. Accordingly,

we hold that the trial court did not abuse its discretion in denying Tillery’s self-defense jury

instruction request based on his status as the aggressor to the ensuing altercation.

       Alternatively, Tillery was not entitled to a self-defense instruction because the evidence,

when viewed in a light most favorable to him, could not establish that any reasonably prudent

person in his situation would have found it necessary to strike a naked and weaponless Martin




4
  Because Tillery’s self-defense claim may be resolved based on his status as the aggressor and
based on his disproportionate use of force, we do not address the State’s novel collateral estoppel
argument—that Tillery is collaterally estopped from claiming that the trial court erred in refusing
his self-defense instruction because he subsequently pleaded guilty to residential burglary and,
thus, conceded in his plea that he was the aggressor.

                                                  8
No. 48112-0-II


with a seven-inch bladed knife. Walden, 131 Wn.2d at 474. Accordingly, in addition to his

status as the aggressor, Tillery was not entitled to a self-defense instruction on this basis as well.


                               II. EXCEPTIONAL SENTENCE FINDINGS

        Next, Tillery contends that the trial court erred by failing to enter written findings of fact

and conclusions of law in support of his exceptional sentence as required under former RCW

9.94A.535 (2013). He thus requests that we remand to the trial court to enter the required written

findings and conclusions. This assignment of error appears to be an oversight, however, as the

trial court entered the required written findings and conclusions on November 3, 2015. Because

Tillery does not raise any contentions with the November 3 findings and conclusions, we do not

further address them.

                                    III. SENTENCE CALCULATION

       Next, Tillery contends that the trial court erred in calculating his incarceration term for

second degree assault and requests we remand for correction of his sentence. We disagree.

       Here, the trial court stated at sentencing that it was imposing a 36-month exceptional

sentence for Tillery’s conviction of second degree assault based on the jury’s rapid recidivism

findings plus an additional 12 months flat time for the deadly weapon sentencing enhancement.

The trial court’s written findings of fact and conclusions of law in support of Tillery’s

exceptional sentence also state that the trial court was imposing a 36-month exceptional sentence

based on the rapid recidivism finding and an additional 12 months for the deadly weapon




                                                  9
No. 48112-0-II


finding.5 And Tillery’s judgment and sentence form also states that the trial court was imposing

a total of 48 months of confinement based on a 36-month base sentence plus 12 months for a

sentence enhancement.

       Tillery does not contend that the trial court lacked authority to impose a 36-month

exceptional sentence plus an additional 12 months for the deadly weapon sentence enhancement.

Instead, he appears to contend that the trial court intended to impose a 24-month exceptional

sentence for the deadly weapon finding plus a 12-month enhancement for the rapid recidivism

finding, for a total of 36 months of incarceration. Tillery is mistaken.

       The trial court’s November 3 written findings and conclusions, which Tillery does not

challenge, clearly demonstrate that it was imposing a 36-month exceptional sentence based on

the rapid recidivism finding plus an additional 12 months for the deadly weapon enhancement,

for a total of 48 months of incarceration. Tillery misreads the portion of section 4.5 of his

judgment and sentence imposing 12 months of flat time consecutive to his 36 months of

confinement as referring to the jury’s rapid recidivism finding when it plainly referred to the

deadly weapon enhancement. Section 4.5 of Tillery’s judgment and sentence states in relevant

part, “A special finding/verdict having been entered as indicated in section 2.1, the defendant is

sentenced to the following additional term of total confinement in the custody of the Department

of Corrections: 12 months on Count No. II.” Clerk’s Papers at 144. And Section 2.1 of Tillery’s

judgment and sentence contains a checked box referring to the jury’s deadly weapon finding and


5
 The trial court mistakenly failed to check a box on Tillery’s September 3, 2015, judgment and
sentence indicating that it was imposing an exceptional sentence. The trial court corrected this
omission by an agreed order on November 3, 2015, entered nunc pro tunc to September 3.
Tillery does not raise any contentions with regard to the omission or with the order correcting the
omission.

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No. 48112-0-II


does not reference the rapid recidivism finding. Accordingly, Tillery fails to demonstrate any

error with regard to his sentence.

                                       IV. APPELLATE COSTS

        Finally, citing to State v. Sinclair, 192 Wn. App. 380, 367 P.3d 612, review denied, 185

Wn.2d 1034 (2016), Tillery requests that we waive appellate costs due to his inability to pay

such costs. In light of Tillery’s indigent status, and our presumption under RAP 15.2(f) that he

remains indigent “throughout the review” unless the trial court finds that his financial condition

has improved, we exercise our discretion to waive appellate costs in this matter. RCW

10.73.160(1).

        We affirm Tillery’s second degree assault conviction and sentence but exercise our

discretion to waive costs on appeal.

        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.



                                                                      Worswick, P.J.
 We concur:



 Johanson, J.




 Sutton, J.




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