                                                                       F.A1.20
                                                             COURT Cl..E f\PFE ALS DIV I
                                                                          WASI-iINGTON
                                                             'STATE OF
                                                                                 25
                                                              2018 JUL 30 Ali 9:




      IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

STATE OF WASHINGTON,
                                                  DIVISION ONE
                       Respondent,
                                                  No. 76367-9-1
                  V.
                                                  UNPUBLISHED OPINION
TRAVIS DANIEL KEALOHA BEYER,

                       Appellant.                 FILED: July 30, 2018


       DWYER, J. — Travis Beyer claimed self-defense during his trial for assault

in the second degree based on a physical altercation with a doorman at an

adults-only night club. He contends that the trial court should have provided a

jury instruction on assault in the fourth degree. He bases his claim for an inferior-

degree offense instruction on the premise that the altercation began as self-

defense and then crossed into assault, and argues that the State could not prove

that the injuries occurred during the assault rather than the initial self-defense

phase. This novel argument improperly parses the assault into separate

individual acts. The trial court did not err in providing only the second degree

assault instruction for the ongoing course of conduct. Furthermore, the State

provided sufficient evidence to disprove the self-defense claim. We affirm.
No. 76367-9-1/2


                                          1

      On November 15, 2015, Beyer attended the Seattle Seahawks home

football game. At the stadium, Beyer befriended three men sitting near him and

accepted their invitation to go out for drinks after the game. The four men went

to various bars over the course of the following three hours, consuming one or

two drinks apiece at each bar.

      At approximately 1:00 a.m., Beyer and his new friends arrived at a dance

club called Kittens Cabaret Night Club. Dylan Bruers was the doorman on duty

that evening. Bruers advised Beyer and his friends of the entry fee and a

required minimum beverage purchase.

      After the four men sat down, a waitress approached them for their drink

orders. Beyer inquired about the drink specials and the waitress explained that

clubs of this type cannot serve alcohol in Washington. The men complained

about the unavailability of alcohol and expressed unwillingness to pay $5 for a

soda. Ignoring the waitress, the four friends discussed which bar to visit next.

       The frustrated waitress spoke to Bruers about the party's refusal to

purchase drinks. Bruers went over to the men and reminded them of the

required drink minimum. The men reluctantly ordered their drinks and began

using their cell phones to locate a different establishment to attend. Their cell

phone use prompted Bruers to return to the tables to tell the men that cell phone

use was prohibited.

       Soon after, Beyer and his friends decided to leave the club. On his way to

the exit, Beyer directed disparaging remarks toward the club and Bruers. While


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No. 76367-9-1/3


his friends went out the exit, Beyer attempted to exit through the entrance and

knocked over two umbrellas. Bruers approached Beyer and the two exchanged

words. Beyer punched Bruers in the face. Beyer then hit Bruers several more

times, rendering Bruers unconscious. Beyer continued to punch the unconscious

doorman until two Kittens employees intervened.

       Bruers sustained multiple facial and nasal fractures and several

lacerations. He required surgery to repair bilateral nasal fractures.

      The State charged Beyer with one count of assault in the second degree.

At trial, Beyer argued that he punched Bruers in self-defense. Beyer claimed that

he feared injury due to Bruers' increasingly aggressive behavior.

       According to Beyer, Bruers was authoritative and aggressive during their

interactions about drink purchases and cell phone use. Beyer testified that he

and Bruers were "jawing" as he walked toward the exit. Beyer directed his

attention at Bruers and proclaimed, "[t]his place sucks...[t]his guy sucks,

everything sucks."

       While Beyer was directing these comments at Bruers, he failed to notice

his friends leave through the exit door. Beyer claimed that he mistakenly tried to

unlatch the rope at the entrance door in order to exit the facility. After he

knocked over the umbrellas, Beyer testified that Bruers "walk[ed] all the way up

into my face, like directly in front of me" and the two exchanged words. Beyer felt

that Bruers was "puffed up" and trying to intimidate him. Beyer claimed that

Bruers used threatening language and then shoved him back into a wall.




                                          3
No. 76367-9-1/4


       At that point, Beyer became concerned that Bruers "was going to do

something else." Beyer decided that he "wasn't going to wait and find out what

[Bruers'] going to do next" and "just started swinging." Beyer claimed that he

could not clearly remember the details after he threw the first punch because his

adrenaline was pumping and he just kept swinging. But he admitted that he

intentionally punched Bruers, and that he landed at least six punches. Beyer

also admitted that Bruers' hands were down at his sides when Beyer threw the

first punch.

       Bruers' testimony paints a different picture of the events leading up to the

punch. Bruers testified that he approached Beyer after Beyer unhooked the rope

and knocked over the umbrellas. At that time, Bruers told Beyer that it was time

for his party to leave. Beyer responded by repeatedly asking Bruers to go

outside with him. Bruers testified that he did not respond to this invitation and

continued telling Beyer that their party should leave. Beyer then stepped up into

Bruers' face, about two inches away. Bruers put his hands on Beyer's chest in

order to step back and make space between them. Bruers testified that Beyer

then put his hands up and asked if Bruers wanted to fight. Bruers did not

respond to the invitation. His next recollection was waking up on the floor with

police officers above him and someone holding a towel to his split lip.

       After testimony and before closing arguments, Beyer requested that the

trial court provide a jury instruction on assault in the fourth degree. Beyer

claimed that the evidence supported that he initially acted in self-defense but the

"continued punching of Mr. Bruers at some point went from lawful force to


                                         4
No. 76367-9-1/5


unlawful force because there was no—the threat had subsided." Beyer argued

that an instruction on assault in the fourth degree was warranted because the

State had not proven beyond a reasonable doubt that the injuries occurred after

the altercation evolved from self-defense to assault. The trial court denied the

request for the instruction on fourth degree assault without explanation. The jury

received instructions on assault in the second degree and self-defense.

       The jury found Beyer guilty of assault in the second degree. Beyer

appeals.

                                         11

                                         A

       Beyer argues that the trial court erred by failing to give a proposed jury

instruction on the inferior degree offense of assault in the fourth degree. We

disagree.

       "Generally, a criminal defendant may be convicted only of crimes charged

in the State's information." State v. Corey, 181 Wn. App. 272, 275, 325 P.3d 250

(2014). But a jury may find a defendant guilty of a crime that is an inferior degree

to the crime charged. RCW 10.61.003; State v. Fernandez-Medina, 141 Wn.2d

448, 453,6 P.3d 1150(2000). A trial court may only instruct the jury on an

inferior-degree offense when

       "(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."



                                         5
No. 76367-9-1/6


Fernandez-Martinez, 141 Wn. 2d at 454 (quoting State v. Peterson, 133 Wn.2d

885, 891, 948 P.2d 381 (1997)).

       Whether to instruct a jury on an inferior-degree offense requires the

application of law to facts and is reviewed de novo. Corey, 181 Wn. App. at 276.

We view the supporting evidence in the light most favorable to the party who

requested the instruction. Fernandez-Medina, 141 Wn.2d at 455-56. The

supporting evidence must affirmatively establish the defendant's theory of the

case. Fernandez-Martinez, 141 Wn.2d at 456.

       On appeal, the parties only dispute the factual element of the test. For an

inferior-degree offense instruction, the factual showing must be "more

particularized" than for other jury instructions. Fernandez-Martinez, 141 Wn.2d

at 455. The evidence must raise an inference that only the inferior-degree

offense was committed. Fernandez-Martinez, 141 Wn.2d at 455. "[VV]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." Fernandez-Martinez, 141

Wn.2d at 461.

       The State charged Beyer with assault in the second degree. A defendant

is guilty of assault in the second degree if he "[I]ntentionally assaults another and

thereby recklessly inflicts substantial bodily harm." RCW 9A.36.021(1)(a). Beyer

requested an inferior-degree instruction on assault in the fourth degree. "A

person is guilty of assault in the fourth degree if, under circumstances not


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No. 76367-9-1/7


amounting to assault in the first, second, or third degree, or custodial assault, he

or she assaults another." RCW 9A.36.041(1). In this case, the factual

component of the inferior-degree instruction test pertains to whether the

evidence, viewed in the light most favorable to Beyer, supports that Beyer only

committed assault in the fourth degree.

       In support of the fourth degree assault instruction, Beyer contends that he

threw the first punches in self-defense. While he admits that continuing to punch

Bruers after he became unconscious crossed over into assault, Beyer claims that

the State failed to prove that Bruers' injuries occurred during the assault phase.

Without proof of substantial bodily harm from the assault, Beyer argues that he

only committed assault in the fourth degree.

       This argument ignores the nature of the crime of assault. Assault is "a

course of conduct crime," rather than a separate act offense. State v. Villanueva-

Gonzalez, 180 Wn.2d 975, 982, 986, 329 P.3d 78(2014). Multiple assaultive

acts involving the same parties and occurring in a short time frame are

considered a single assault. See Villanueva-Gonzalez, 180 Wn.2d at 985

(determination of whether multiple assaultive acts are part of the same course of

conduct requires examination of the totality of the circumstances, including the

length of time over which the assault took place, whether the acts took place in

the same location, the defendant's intent or motivation for the different acts,

whether the acts were uninterrupted, and whether the defendant had an

opportunity to reconsider his actions). This "helps to avoid the risk of a

defendant being 'convicted for every punch thrown in a fistfight." Villanueva-


                                          7
No. 76367-9-1/8


Gonzalez, 180 Wn.2d at 985 (quoting State v. Tili, 139 Wn.2d 107, 116, 985 P.2d

365 (1999)).

       As a single course of conduct, Beyer's actions cannot be parsed into a

self-defense phase and an assault phase. Consequently, the entirety of the brief

course of conduct amounted to either an assault that caused substantial bodily

harm or an action justified as self-defense. The evidence cannot establish that

Beyer committed only fourth degree assault to the exclusion of second degree

assault. Therefore, a fourth degree assault instruction was inapplicable. We

conclude that the trial court did not err by refusing to instruct the jury on assault

in the fourth degree.



       Beyer contends that the State failed to prove beyond a reasonable doubt

that he had the requisite intent to assault Bruers or that he recklessly caused

serious bodily injury. We disagree.

       Due process requires that the State prove every element of a crime

beyond a reasonable doubt. State v. Johnson, 188 Wn.2d 742, 750, 399 P.3d

507(2017). To determine whether sufficient evidence supports a conviction, an

appellate court must "view the evidence in the light most favorable to the

prosecution and determine whether any rational fact finder could have found the

elements of the crime beyond a reasonable doubt." State v. Homan, 181 Wn.2d

102, 105, 330 P.3d 182(2014). A claim of insufficient evidence admits the truth

of the State's evidence and all reasonable inferences from that evidence. State

v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). All reasonable


                                           8
No. 76367-9-1/9


inferences must be interpreted in favor of the State and most strongly against the

defendant. Salinas, 119 Wn.2d at 201. Additionally, an appellate court "must

defer to the trier of fact for purposes of resolving conflicting testimony and

evaluating the persuasiveness of the evidence." Homan, 181 Wn.2d at 106.

       Second degree assault required the State to prove that Beyer intentionally

assaulted Bruers and recklessly inflicted substantial bodily harm. RCW

9A.36.021(1)(a). Beyer raised a self-defense claim, which then shifted the

burden to the State to prove the absence of self-defense beyond a reasonable

doubt. State v. Walden, 131 Wn.2d 469, 473, 932 P.2d 1237(1997). "Evidence

of self-defense is evaluated 'from the standpoint of the reasonably prudent

person, knowing all the defendant knows and seeing all the defendant sees."

Walden, 131 Wn.2d at 474 (quoting State v. Janes, 121 Wn.2d 220, 238, 850

P.2d 495 (1993)). Reasonable force in self-defense is justified where there is an

appearance of imminent danger. State v. Bradley, 141 Wn.2d 731, 737, 10 P.3d

358 (2000). The degree of force used is limited to what a reasonably prudent

person would find necessary under the conditions as they appeared to the

defendant. Walden, 131 Wn.2d at 474.

       Beyer argues that the State failed to provide sufficient evidence to refute

his claim of self-defense and prove intent and recklessness as needed for

conviction of second degree assault. A claim of self-defense negates both intent

and recklessness. See State v. Brown, 94 Wn. App. 327, 343 n.4, 972 P.2d 112

(1999)(because a person acting in self-defense is acting lawfully, proof of self-

defense negates the element of intent), aff'd, 140 Wn.2d 456, 998 P.2d 321


                                          9
No. 76367-9-1/10


(2000); State v. Dyson, 90 Wn. App. 433, 438, 952 P.2d 1097(1997)(in context

of assault, "self-defense negate[s] the element of recklessness, which requires

that a person disregard a substantial risk that a wrongful act may occur, because

self-defense 'as defined, is not wrongful"(quoting State v. Hanton, 94 Wn.2d

129, 133, 614 P.2d 1280 (1980))). Therefore, the State was required to disprove

the self-defense claim beyond a reasonable doubt in order to prove that Beyer

intentionally assaulted Bruers and recklessly caused substantial bodily harm.

       To refute the claim of self-defense, the State provided evidence that Beyer

was spoiling for a fight rather than defending himself. Bruers testified that Beyer

was confrontational, getting in his face, and repeatedly asking him to go outside.

Bruers never gave any sign that he intended to escalate the altercation from

words to blows. Beyer acknowledged that when he struck, Bruers' hands were

down by his sides and were not in fists. While Beyer claimed that Bruers

instigated the fight by pushing him, Bruers testified that he merely attempted to

create some distance when Beyer got in his face.

       In addition to testimony from the parties, the jury had the opportunity to

watch several surveillance videos from the club. One of the videos showed

Bruers stumbling backward in the hallway with his arms up and then coming to a

stop with his hands at his side. Beyer then punched Bruers repeatedly in the

face. The beating continued until Beyer was tackled by a club employee.

       Viewing this evidence in the light most favorable to the State, the jury had

sufficient evidence to conclude that Beyer instigated the fight with little




                                          10
No. 76367-9-1/1 1


provocation rather than in response to the reasonable belief that he was in

danger of imminent harm.

       Additionally, the evidence shows that Beyer's use of force far exceeded

the force necessary to prevent an offense against him. Bruers went down quickly

and lost consciousness. Bruers never had the opportunity to counterpunch or

defend himself. Despite this, Beyer continued to punch Bruers several more

times, only stopping when a club employee intervened. The floor manager of the

club testified that he saw "a person delivering blow after blow to another person."

Beyer continued to punch the unconscious Bruers to the point that one of the

witnesses feared Bruers was being pummeled "potentially to death." In light of

this sustained violence even after incapacitation of the alleged threat, the jury

had sufficient evidence to conclude that Beyer's use of force was not reasonable

for a self-defense claim.

       Viewing this evidence in the light most favorable to the State, the State

demonstrated Beyer's lack of reasonable fear, disproportionate use of force, and

intentionality. Therefore, the State provided sufficient evidence to disprove the

self-defense claim beyond a reasonable doubt. Beyer's attempt to negate intent

and recklessness through self-defense fails.

       In addition to refuting the self-defense claim, the State provided evidence

that Beyer intentionally assaulted Bruers. Beyer admitted,"Yeah, I intentionally

punched him." Beyer also testified that he "wasn't going to wait and find out what

[Bruers'] going to do next" and started swinging. This testimony clearly

demonstrated his intention to punch Bruers. Considering this evidence in the


                                         11
No. 76367-9-1/12


light most favorable to the State, the jury had sufficient evidence to conclude that

Beyer intentionally assaulted Bruers.

       The State was also required to demonstrate beyond a reasonable doubt

that Beyer acted recklessly. "A person is reckless or acts recklessly when he or

she knows of and disregards a substantial risk that a wrongful act may occur and

his or her disregard of such substantial risk is a gross deviation from conduct that

a reasonable person would exercise in the same situation." RCW

9A.08.010(1)(c). Recklessness has both a subjective and objective component

based on what the defendant knew and how a reasonable person would have

acted with that knowledge. State v. R.H.S., 94 Wn. App. 844, 847, 974 P.2d

1253(1999). "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." R.H.S., 94 Wn. App. at 847.

       The jury heard the State's evidence and watched the surveillance video

showing that Beyer intentionally punched first, rendered Bruers unconscious, and

still continued to punch. The jury also heard Beyer's testimony that he continued

the assault in an adrenaline fueled haze, not fully cognizant of his actions. The

jury clearly disbelieved Beyer's claims. This was a credibility determination that

is not reviewable on appeal. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850

(1990).

       The State provided sufficient evidence to support conviction on assault in

the second degree. Beyer's presented his self-defense claim, but the jury heard

ample evidence to contradict this claim. "This court must defer to the trier of fact


                                         12
No. 76367-9-1/13


on issues of conflicting testimony, credibility of witnesses, and the

persuasiveness of the evidence." State v. Thomas, 150 Wn.2d 821, 874-75, 83

P.3d 970(2004). The jury resolved the conflicting testimony in favor of

conviction and we defer to this conclusion.

       Affirmed.




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