      IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

THE STATE OF WASHINGON,                    )         No. 76894-8-1
                                           )
            Respondent,                    )         DIVISION ONE
                                           )
            v.                             )         PUBLISHED OPINION
                                           )
MICHAEL ESPINOSA,                          )
                                           )
            Appellant.                     )
                                           )         FILED: April 8, 2019

      HAZELRIGG-HERNANDEZ,     J. — Michael Espinosa shot and killed Martin

Douglas on May 23, 2015. Espinosa claimed he acted in self-defense and defense

of another. The court instructed the jury regarding justifiable homicide and

informed the jury that the homicide was not justified if the defendant was the

aggressor in the confrontation. A jury found Espinosa guilty of murder. Espinosa

seeks reversal on multiple grounds. Because we find that the given instructions

did not make the law of self-defense manifest to the jury, we reverse.

                                     FACTS

      On the night of May 22, 2015, Martin Douglas and Justina Houston returned

from a casino to Houston's home in Federal Way. Houston convinced Douglas to

lend her his car for an hour or two while he stayed at her house. She and her

roommate, Yesenia Cuellar, took Cuellar's infant daughter and went to meet

Michael Espinosa. They picked up Espinosa and a friend of his, Alex Delker, and
No. 76894-8-1/2

went to get methamphetamine. They obtained methamphetamine and smoked it

at the home of Cuellar's friend.

       Around 1:00 a.m. on March 23, 2015, Douglas began calling Houston and

sending her angry text messages demanding that she return his car so that he

could go home. When Houston, Cuellar, Espinosa, and Delker returned to the

house, Douglas was outside. He approached the car yelling curses and threats.

Cuellar and Houston were yelling back at him. Espinosa fired one shot either at

the ground or in the air and a second shot at Douglas. The second shot hit Douglas

in the head and he died from the wound.

       Espinosa was charged with murder in the second degree and unlawful

possession of a firearm in the second degree. The State also alleged that both

charges involved the aggravating factor of rapid recidivism. Espinosa pled guilty

to the unlawful possession of a firearm charge and admitted the rapid recidivism

aggravating factor.

       At trial, the key witnesses presented different versions of the events leading

up to the homicide. Houston testified that she felt that Douglas had moved

threateningly toward Cuellar but he never made a motion like he was going to

injure her and the baby. She testified that she never feared for her safety. Cuellar

testified that Douglas tried to hit her before she went inside to put down her child

but did not touch her. She testified that she was coming back down the stairs when

she heard the two gunshots.

       Espinosa testified that he saw Douglas make a motion and thought he was

going to punch Cuellar while she was holding her child. He said that he saw




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No. 76894-8-1/3

Douglas pull his arm back to hit Cuellar, then drew the gun from his waistband,

cocked it, and fired a round into the air before Douglas landed the blow. Espinosa

said that he drew his weapon and fired this "warning shot" to distract Douglas and

keep him from striking Cuellar and her child. Espinosa testified that Douglas then

turned and began advancing toward him and Espinosa shot at him because he

feared for his life.

       Espinosa's proposed jury instructions included both a general self-defense

instruction based on WPIC 17.02 and a justifiable homicide instruction based on

WPIC 16.02. The State moved to preclude the general self-defense instruction

offered by Espinosa. The State argued that the justifiable homicide instruction

stated the applicable legal standard because it contained the heightened

requirement that the defendant reasonably believe the victim intended to inflict

death or great bodily injury. Espinosa responded that he had proposed both

instructions because, although he conceded that the justifiable homicide

instruction was appropriate for the shot that led to Douglas' death, there could be

a question in the minds of the jury regarding whether the warning shot was a lawful

use of force. Espinosa argued that the general self-defense instruction was

appropriate to let the jury know that Espinosa was using lawful force in defense of

Cuellar and her child. The State argued in response that Espinosa was not

charged with any crime stemming from the warning shot and an instruction

regarding the lawfulness of that shot would constitute an impermissible comment

on the evidence.




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No. 76894-8-1/4

       The court found that Espinosa had presented some evidence of his fear of

death or great bodily harm before shooting Douglas and allowed the instruction on

justifiable homicide. The court declined to instruct the jury regarding general self-

defense because the State had not charged Espinosa with any crime in firing the

warning shot and the jury was not being asked to determine the legality of that

shot. The court noted that counsel was free to argue the context of the first shot

in closing arguments.

       The State also moved to allow an instruction commonly referred to as a "first

aggressor" instruction, which would instruct the jury that self-defense was not

available as a defense to the charge if the defendant provoked or commenced the

altercation. Espinosa opposed this motion, arguing that the instruction was not

warranted by the facts because he intervened in the situation to defend Cuellar.

In the alternative, he renewed his request for a general self-defense instruction in

addition to the aggressor instruction so that the jury could "understand whether or

not [Espinosa] really was a first aggressor in light of his legal right to defend other

people."

       The court found that there was conflicting evidence regarding the

circumstances surrounding the shooting and discussed the cases it relied upon for

its interpretation of the law. The court cited State v. Heath, for the proposition that

an aggressor instruction is appropriate if there is any evidence that the defendant

provoked a fight and even if the victim threw the first blow. 35 Wn. App. 269, 666

P.2d 922 (1983). The court noted that in State v. Wingate, the Supreme Court

said the instruction is proper if there is conflicting evidence as to whether the




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No. 76894-8-1/5

defendant's conduct precipitated the confrontation. 155 Wn.2d 817, 122 P.3d 908

(2005).   Finally, in State v. Hardy, the court noted that the instruction was

appropriate where evidence established that the defendant was an aggressor and

"the cause of affray [was] sufficient to raise a jury question on the issue." 44 Wn.

App.477,722 P.2d 872(1986). Therefore, the court concluded that the aggressor

instruction was appropriate because it properly directed the jury to determine

whether Espinosa's acts precipitated a confrontation with Douglas.

       The court did not agree with defense counsel that allowing an aggressor

instruction necessitated a general self-defense instruction, reiterating that

Espinosa was not charged with assault from the first shot. The court noted that

the language of the aggressor instruction should reflect the case law requiring an

intentional action by the defendant rather than an unlawful action. Espinosa

objected to the inclusion of this instruction. The trial court subsequently instructed

the jury as follows:

       No person may, by any intentional act reasonably likely to provoke a
       belligerent response, create a necessity for acting in self-defense
       and thereupon kill another person. Therefore, if you find beyond a
       reasonable doubt that the defendant was the aggressor, and that
       defendant's acts and conduct provoked or commenced the fight, then
       self-defense is not available as a defense.

       During the State's closing argument, the prosecutor emphasized to the jury

that the aggressor instruction related specifically to the confrontation between

Espinosa and Douglas. The State framed the issue to the jury this way:

      [W]hen it comes to talking about the first aggressor, we are talking
      about the altercation between the defendant and Mr. Douglas. Did
      the defendant provoke Mr. Douglas, thereby causing him to have to
      act in self-defense? And if your answer to this is yes, that the
      defendant was the first aggressor in this case, he does not get to


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No. 76894-8-1/6

       claim that the homicide was justifiable. You cannot create the need
       to shoot someone with a deadly weapon and then claim that you had
       to do it.

The prosecutor argued that Douglas was not otherwise engaged with Espinosa in

any way until Espinosa pulled out his gun and fired a shot. She asked the jury to

"think about who started it" and whether "firing a shot in the vicinity of someone

who's not looking at you and has no idea what direction that shot might be going"

created the need for Espinosa to shoot Douglas. On rebuttal, the State said that

the only way Espinosa would not be the first aggressor would be if the jury believed

that Douglas was about to strike Cuellar and that was the reason that Espinosa

fired the warning shot.

       The jury found Espinosa guilty of murder in the second degree, found that

he was armed with a firearm at the time of the commission of the crime, and found

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

Espinosa filed a motion for a new trial and to interview jurors based on alleged

prejudicial jury misconduct. The court denied this motion, finding that there was

no misconduct by the jury. The court imposed an exceptional sentence of 477

months of total confinement. Espinosa timely appealed.

                                    ANALYSIS

       Espinosa contends that the aggressor jury instruction was not supported by

the evidence and effectively denied Espinosa his right to act in self-defense. He

also contends that the court's instruction on self-defense was inadequate because

it did not include a complete explanation of "the law entitling a person to use force

in response to an imminent assault." Espinosa argued that these errors diluted the




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No. 76894-8-1/7

State's burden to disprove self-defense and denied Espinosa his constitutional

right to present a defense.

       Jury instructions are generally sufficient where they are supported by

substantial evidence, properly state the law, and allow the parties an opportunity

to satisfactorily argue their theories of the case. State v. Clausing, 147 Wn.2d 620,

626, 56 P.3d 550 (2002). The adequacy of jury instructions is reviewed de novo.

Id. A defendant is entitled to an instruction on his theory of the case if there is

evidence to support that instruction. State v. Werner, 170 Wn.2d 333, 336, 241

P.3d 410 (2010). When read as a whole, the jury instructions must make the law

of self-defense manifestly apparent to the average juror. State v. LeFaber, 128

Wn.2d 896, 900, 913 P.2d 369 (1996) (quoting State v. Allerv, 101 Wn.2d 591,

594-95, 682 P.2d 312 (1984)), abrogated on other grounds by State v. O'Hara,

167 Wn.2d 91, 217 P.3d 756 (2009).

       The court's refusal to instruct on a party's theory of the case when there is

supporting evidence is reversible error if it prejudices the party. Werner, 170 Wn.2d

at 337. Espinosa argues that the court erred in giving an aggressor instruction

because the instruction was not supported by the evidence and was misleading to

the jury. Espinosa also contends that the court erred in refusing to give an

instruction regarding the general standard for self-defense or defense of others in

addition to the instruction for justifiable homicide.

       Use of force toward another person is lawful when "used by a party about

to be injured, or by another lawfully aiding him or her, in preventing or attempting

to prevent an offense against his or her person . . . in case the force is not more




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No. 76894-8-1/8

than is necessary." RCW 9A.16.020(3). In Washington, homicide is justifiable

when committed in lawful self-defense or defense of another if it is reasonable for

the person defending himself to believe that the other person intends to kill or inflict

great personal injury and is in imminent danger of doing so. RCW 9A.16.050; State

v. Walden, 131 Wn.2d 469, 474, 932 P.2d 1237 (1997). Mere words alone are

insufficient to create a reasonable apprehension of great bodily harm entitling a

person to respond with lawful force in self-defense. State v. Riley, 137 Wn.2d 904,

912, 976 P.2d 624 (1999). Jurors must assess evidence of claims of self-defense

or defense of others "from the standpoint of the reasonably prudent person,

knowing all the defendant knows and seeing all the defendant sees." State v.

Janes, 121 Wn.2d 220, 238, 850 P.2d 495(1993). A defendant is entitled to a jury

instruction about justifiable homicide when he produces some evidence

demonstrating self-defense or defense of another. Walden, 131 Wn.2d at 473.

       A person who provoked an altercation in which he killed the other person

cannot invoke the right of self-defense to justify or excuse the homicide. State v.

Craig, 82 Wn.2d 777, 783, 514 P.2d 151 (1973). An aggressor instruction is

appropriate when there is credible evidence from which a jury can reasonably

determine that the defendant provoked the need to act in self-defense. Riley, 137

Wn.2d at 909-10. The defendant's provoking act must be an intentional act that

the jury could reasonably assume would provoke a belligerent response from the

victim. State v. Birnel, 89 Wn. App. 459,473,949 P.2d 433(1998). The provoking

act does not need to be unlawful. See State v. Sullivan, 196 Wn. App. 277, 290-

91, 383 P.3d 574 (2016). If there is conflicting evidence as to whether the




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No. 76894-8-1/9

defendant's conduct provoked the conflict, an aggressor instruction is appropriate.

Riley, 137 Wn.2d at 910. "While an aggressor instruction should be given where

called for by the evidence," courts should use care in providing this instruction

because "an aggressor instruction impacts a defendant's claim of self-defense,

which the State has the burden of disproving beyond a reasonable doubt." Id. at

910 n.2.

       Here, there was conflicting testimony about the events leading up to the

warning shot. Although Espinosa testified that he fired the warning shot to keep

Douglas from hitting Cuellar and her child, Cuellar testified that she was in the

house when both shots were fired. Espinosa was not charged with assault in the

second degree or any other crime based on the first shot. The lawfulness of

Espinosa's first shot was not at issue. However, Espinosa states that his "theory

of defense rested on his use of reasonable force in response to Mr. Douglas' initial

aggression, coupled with his use of reasonable force when directly confronted by

Mr. Douglas shortly thereafter." Under Espinosa's theory, the warning shot was a

reasonable use of force in defense of Cuellar and therefore not an aggressive act.

      Although there was conflicting testimony, the instructions as given impaired

Espinosa's ability to fully argue his theory of the case. When the court gave the

aggressor instruction but declined to give the instruction regarding lawful defense

of another, it failed to make the law of self-defense manifestly clear to the jury.

Although the lawfulness of the warning shot was not directly at issue because

Espinosa was not charged with assault stemming from this shot, an instruction on

lawful defense of another could have helped the jury to assess whether Espinosa




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No. 76894-8-1/10

was the aggressor in the altercation. Without this instruction, the jury may not have

known that Espinosa's intentional act could have been a lawful use of force rather

than an act of aggression.

      This instructional error was exacerbated by the State's closing argument

that directed the jury to consider only the conflict between Douglas and Espinosa

when deciding whether Espinosa was the aggressor who initiated the altercation.

By arguing that the jury should disregard any evidence that Espinosa was acting

in defense of Cuellar in its analysis of which party provoked the fight, the State

removed the warning shot from the greater context of the situation. Even if the jury

believed Espinosa's testimony in its entirety, the conclusion that the warning shot

was the first act of aggression between Espinosa and Douglas was inescapable.

       An error in jury instructions is presumed prejudicial unless it affirmatively

appears to be harmless. Clausinq, 147 Wn.2d at 628. Reversal is required unless

the instructional error is "trivial, or formal, or merely academic, and was not

prejudicial to the substantial rights of the party assigning it, and in no way affected

the final outcome." State v. Townsend, 142 Wn.2d 838, 848, 15 P.3d 145 (2001)

(quoting State v. Golladay, 78 Wn.2d 121, 139, 470 P.2d 191 (1970)).

       Here, we cannot affirmatively say that this error was harmless. The given

instructions failed to make the law of self-defense manifest to the jury and impaired

Espinosa's right to argue his complete theory of the case. Because self-defense

was Espinosa's primary defense to the charge, this was not a trivial error and may

have affected his substantial rights.




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      Because we have determined that the trial court erred in giving the

aggressor instruction, we do not reach the issues of admission of evidence that

Espinosa had previously used or possessed a firearm, alleged juror misconduct,

the imposition of an exceptional sentence based on rapid recidivism, imposition of

the DNA fee, or alleged Miranda violations.

      Reversed.




WE CONCUR:




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