       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                                                             en

                                                   No. 71518-6-1
                       Respondent,
                                                   DIVISION ONE
               v.



STEVEN LEO KAYSER,                                 UNPUBLISHED OPINION
                                                                                  v<
                       Appellant.                  FILED: December 21, 2015



       Becker, J. — Steven Kayser appeals his conviction for assaulting a

process server. An erroneous ruling admitting character evidence was

sufficiently prejudicial to require a new trial.

                                         FACTS

       Steven Kayser, a man in his late sixties at the time of the incident in

question, became an inventor after working much of his life as an accountant.

Kayser protects his inventions as trade secrets. He has occasionally been

involved in litigation concerning them.

       Kayser moved to rural Whatcom County in 2006. A driveway marked by a

large "no trespassing" sign leads into his property. The first building encountered

is a long warehouse where Kayser maintains his office and stores documents.

Kayser keeps the windows of this building covered. Kayser's residence is at the

end of the driveway.
No. 71518-6-1/2


       In February 2010, process server Mark Adams arrived at the Kayser

property with a civil summons and complaint to serve on Kayser and his wife. It

was about 4:00 p.m. Adams parked his car and walked up to the warehouse.

He knocked on one of the doors and tried to look through a window. A phone in

Adams' car rang, so he returned to the car momentarily. He then went back to

the warehouse and started knocking on a different door.

       Kayser's wife, Gloria Young, saw Adams from a window and thought he

was "snooping." Young telephoned Kayser in the warehouse to alert him. She

then went outside and was approached by Adams. In response to questions,

Young told Adams that she lived there and that she was Kayser's wife. Adams

handed her some papers from a metal box. Kayser came out of the warehouse

and said, "Can I help you?" Adams responded by asking him if he was Steven

Kayser. Kayser answered "yes." Adams did not identify himself. He handed

documents to Kayser and asked if he would sign for them.

      Kayser testified that he perceived Adams as a trespasser. He felt Adams,

a large man with long hair, was frightening Young, who is some years older than

Kayser, small and a little frail. Kayser also said that when he saw Adams

reaching into the metal box, he feared it might contain a gun. In an angry voice,

Kayser told Adams he had five seconds to get off the property. Kayser

threatened to get a gun.

      Adams testified that he immediately began to walk back to his car.

Kayser, on the other hand, testified that Adams stayed where he was. Kayser

hurried back to his office, came out with a shotgun, and fired a shot. Kayser kept
No. 71518-6-1/3



counting to five and fired two more shots—one after Adams reached his car and

one as Adams backed out of the driveway.

       Three years later, Kayser was tried and convicted of assault in the second

degree while armed with a deadly weapon. The jury answered "yes" to the

allegation that the assault occurred with a firearm. Kayser was sentenced to

three months for the assault and three years for the firearm enhancement.

Kayser appeals.

                        SUFFICIENCY OF THE EVIDENCE

       Kayser first challenges the sufficiency of the evidence to prove the crime

charged. When a conviction must be reversed for insufficiency of the evidence,

the case must be dismissed with prejudice. State v. DeVries, 149 Wn.2d 842,

853, 72 P.3d 748 (2003). We therefore address this issue first.

       In considering the sufficiency of the evidence, this court reviews the record

in the light most favorable to the State to determine whether a rational jury could

have found the essential elements of the charge beyond a reasonable doubt.

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

       At trial, Adams testified that all the shots were fired into the air, although

the second shot was at a lower angle than the others. Kayser argues that

Adams' trial testimony supports, at most, the misdemeanor charge of unlawful

display of a firearm.

       In a statement to police officers right after the incident, Adams said he

thought the second shot was fired toward him and he was surprised it did not hit

him or his car. The jury could have believed that what Adams told police at the
No. 71518-6-1/4



time of the incident was more credible than his memory three years later. And in

any event, the State was not required to prove that Kayser shot directly at

Adams. The question presented to the jury was whether Kayser used unlawful

force with the intent of putting Adams in imminent fear of bodily injury. The

element of intent for the felony as charged is in the definition of assault, stated as

follows in instruction 7:

                                 INSTRUCTION NO. 7


              An assault is an act, with unlawful force, done with the intent
       to create in another apprehension and fear of bodily injury, and
       which in fact creates in another a reasonable apprehension and
       imminent fear of bodily injury even though the actor did not actually
       intend to inflict harm.

       Adams testified that Kayser threatened to shoot him if he was not off the

property by the count of five. He recalled that after the first shot, he ran to his car

and ducked under the dashboard while fumbling with his keys. He was surprised

that the second shot did not hit either him or his car. This evidence was sufficient


to prove that Kayser intended his shots to create in Adams apprehension and

fear of bodily injury and that Adams did in fact have a reasonable apprehension

and imminent fear of bodily injury.

       Kayser defended on the basis that the force he used was lawful because

he was acting in defense of himself and his wife. Where self-defense or defense

of another is claimed, the absence of self-defense becomes another element the

State must prove beyond a reasonable doubt. State v. McCullum, 98 Wn.2d 484,

493-94, 656 P.2d 1064 (1983). Kayser contends the State did not present

sufficient evidence to show the absence of self-defense.
No. 71518-6-1/5


       Adams testified that he handed papers to Kayser to sign and asked

Kayser for his signature. According to Adams, Kayser responded by proclaiming

that Adams would be shot if he were not off the property in five seconds. Adams

testified that he immediately began to walk back towards his car. A reasonable

jury could conclude from this testimony that Adams posed no threat to Kayser or

Young. This was sufficient evidence to carry the State's burden to prove absence

of self-defense.

       We reject Kayser's challenge to the sufficiency of the evidence.

                       ER 404(b) - EVIDENCE OF INTENT

       We next address the alleged error in admitting evidence under ER 404(b).

       During a search of Kayser's office, the police photographed a pencil

sketch of what looked like a stop sign. The sketch was found taped to an interior

window shutter, facing inward. Below the stop sign diagram were handwritten

sentences indicating entry was forbidden without the owner's permission. "This

is a very dangerous place" was clearly written on the bottom. On a sticky note

attached to the sketch, the phrase "Armed Response" was penciled in.

       The State offered the photograph as an exhibit. Kayser objected on ER

404(b) grounds.

       "Evidence of other crimes, wrongs, or acts is not admissible to prove the

character of a person in order to show action in conformity therewith." ER

404(b). Evidence of a prior act may be admissible "for other purposes, such as

proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or

absence of mistake or accident." ER 404(b). Such evidence must be relevant to
No. 71518-6-1/6



a material issue, and its probative value must outweigh its prejudicial effect.

State v. Evervbodvtalksabout. 145 Wn.2d 456, 465-66, 39 P.3d 294 (2002).

       To determine whether evidence is admissible under ER 404(b), trial courts

must engage in a three-part analysis. First, the court must identify the purpose

for which the evidence will be admitted. Second, the evidence must be materially

relevant. Third, the court must balance the probative value of the evidence

against any unfair prejudicial effect the evidence may have upon the jury. In

doubtful cases, the scale should be tipped in favor of the defendant. State v.

Smith. 106 Wn.2d 772, 776, 725 P.2d 951 (1986); State v. Wade. 98 Wn. App.

328, 334, 989 P.2d 576 (1999).

       The trial court admitted the exhibit as probative of Kayser's intent and

found that it was not unduly prejudicial. After a deputy testified and described the

sketch, Kayser moved for a mistrial. The motion was denied.

       On appeal, Kayser argues the admission of the evidence violated ER

404(b). This court reviews decisions under ER 404(b) for an abuse of discretion.

State v. Fisher. 165 Wn.2d 727, 745, 202 P.3d 937 (2009).

      The State initially suggests that ER 404(b) does not apply because the

challenged exhibit "does not constitute misconduct or a bad act." The idea that

the rule applies only to prior bad acts or misconduct is a misconception.

Evervbodvtalksabout, 145 Wn.2d at 466. The rule prohibits the use of any kind

of "other" act as propensity evidence.

       "If the State offers evidence of a prior act to demonstrate intent, there

must be a logical theory, other than propensity, demonstrating how the prior act
No. 71518-6-1/7


connects to the intent required to commit the charged offense." Wade, 98 Wn.

App. at 334. Here, to convict Kayser of the charged offense, the State had to

prove that he fired the shots with the intent to create in Adams apprehension and

fear of bodily injury. The State theorizes that the presence of the sketch inside

Kayser's office "was an indication from Kayser that he intended to deal with

uninvited trespassers with an armed response." This theory does not logically

connect the sketch with Kayser's intent when he fired the shots on the day in

question. There was no evidence that Kayser himself made the sketch, what its

purpose was, or how long it had been hanging in his office.

       "Use of prior acts to prove intent is generally based on propensity when

the only commonality between the prior acts and the charged act is the

defendant. To use prior acts for a nonpropensity based theory, there must be

some similarity among the facts of the acts themselves." Wade. 98 Wn. App. at

335. The State did not identify for the trial court any similarity between Kayser's

act of firing shots outside the office and his "other" act of keeping the sketch

inside the office. When the issue first arose, the prosecutor said, "I think the jury

can make of it what they will." What the jury was then allowed to "make of it" was

that Kayser had a propensity to use arms to scare off strangers. We conclude

the trial court abused its discretion by admitting the sketch.

       Errors under ER 404(b) require reversal only if the error, within reasonable

probability, materially affected the outcome. The error is harmless "if the

evidence is of minor significance compared to the overall evidence as a whole."

Evervbodvtalksabout. 145 Wn.2d at 468-69.
No. 71518-6-1/8


           The State argued that Kayser fired the shots because he was angry about

being served papers. Kayser argued that he fired the shots with justification

because he perceived Adams to be a trespasser who was menacing his wife and

did not leave when asked. The exhibit enabled the State to argue that an "Armed

Response" was Kayser's preplanned response to unwelcome visitors in general.

Thus, the exhibit cast doubt on Kayser's claim that his use of force in this incident

was lawful.


           The trial court reasoned that the note was not "all that prejudicial" to

Kayser because it simply reflected that he was a careful and private man,

concerned about the confidentiality of his trade secrets and the safety of himself

and his wife. The sketch was more than that. It included the statement "This is a

very dangerous place" and the note "Armed Response." This material was

prejudicial. It suggested that Kayser was a dangerous individual inclined to

resort to firearms without legitimate reason.

           Because Kayser's defense depended on the reasonableness of his claim

of self-defense and defense of another, we cannot say with confidence that the

challenged evidence had no material effect on the outcome of the trial. Kayser is

entitled to a new trial.

           We next address other issues raised by Kayser that may arise again on

retrial.


                                DEFENSE OF PROPERTY

           Defense counsel initially proposed an instruction on lawful force that

included use of force to defend one's property. Just before the case went to the



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No. 71518-6-1/9



jury, counsel withdrew that portion of the instruction. Kayser contends counsel's

withdrawing the instruction on defense of property was deficient performance.

       To establish ineffective assistance of counsel, Kayser must show that (1)

his counsel's performance was deficient and (2) the deficient performance

resulted in prejudice. Strickland v. Washington. 466 U.S. 668, 687, 104 S. Ct.

2052, 80 L. Ed. 2d 674 (1984). We presume counsel is effective, and the

defendant must show there was no legitimate strategic or tactical reason for

counsel's action. State v. Sutherbv. 165 Wn.2d 870, 883, 204 P.3d 916 (2009).

Claims of ineffective assistance of counsel are reviewed on appeal de novo.

Sutherbv. 165 Wn.2d at 883.

       Kayser contends there was no legitimate reason for trial counsel to

abandon the defense of property instruction. He argues that if instructed on the

defense of property, the jurors might have reasonably believed that he, a man in

his late sixties and of small build, used reasonable force to eject a large stranger

who he believed to be a trespasser.

       Kayser correctly argues that a person who uses force to expel a

trespasser will not necessarily incur criminal liability so long as the use of force is

reasonable. RCW9A.16.020. It is not necessary for the defendant in such a

case to show that he feared for his own personal safety. State v. Bland. 128 Wn.

App. 511, 516, 116 P.3d 428 (2005). "Although the use of deadly force is not

justified to expel a mere nonviolent trespasser, under certain circumstances

necessary force may include putting a trespasser in fear of physical harm."
No. 71518-6-1/10


Bland. 128 Wn. App. at 517. But defense of property is available to justify the

use of force only if the trespass is "malicious":

       The use, attempt, or offer to use force upon or toward the person of
       another is not unlawful in the following cases:

               (3) Whenever 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, or a malicious trespass, or other
        malicious interference with real or personal property lawfully in his or her
        possession, in case the force is not more than is necessary.

RCW 9A.16.020 (emphasis added).

        Defense counsel withdrew the defense of property instruction when it

became clear that an instruction would also be needed to define the word

"malicious." The State proposed an instruction, modeled after RCW

9A.04.110(12), defining "malicious" in terms of "an evil intent, wish, or design to

vex, annoy, or injure another person." It was a legitimate tactical decision for

counsel to decide against pursuing a defense that would require the jury to find

that Adams acted with malice. There was little or no evidence that Adams came

on Kayser's property with a wish to annoy or injure anyone. Cf. Bland. 128 Wn.

App. at 516 (trespasser was cursing and acting vexatiously).

        Instead, counsel argued self-defense and defense of another. That

defense theory did not depend on Adams' actual intent, but instead focused on

what Kayser reasonably believed. It was more consistent with Kayser's

testimony that Adams' conduct made him afraid for himself and more particularly

for his wife.

       We conclude Kayser has not shown that defense counsel's performance

was deficient.


                                          10
No. 71518-6-1/11


                     ADEQUACY OF JURY INSTRUCTIONS

       Because the jury has the right to regard the to-convict instruction as a

complete statement of the law, it should state all elements the State is required to

prove. State v. Smith. 131 Wn.2d 258, 263, 930 P.2d 917 (1997). Kayser

contends that under this rule, the State's burden to prove the absence of self-

defense belongs in the to-convict instruction.

       A trial court does not commit reversible error when a to-convict instruction

does not refer to the State's burden to prove the absence of self-defense, so long

as that burden is made clear through a separate instruction. State v. Hoffman.

116 Wn.2d 51, 109, 804 P.2d 577 (1991); State v. Acosta. 101 Wn.2d 612, 622,

683 P.2d 1069 (1984). That is what happened here. Instruction 5, the to-convict

instruction, did not include the absence of self-defense as an element, but the

State's burden to prove it was stated in instruction 13.

       Kayser also contends the to-convict instruction should have instructed the

jury to find that Kayser "intentionally" assaulted another "with the objective or

purpose to accomplish a result that constitutes a crime." This language was set

forth verbatim in a separate instruction, instruction 11. Kayser does not

persuasively explain why it was constitutionally necessary to include the same

language in the to-convict instruction, nor does he cite authority that would

support such a holding.

                        DETECTIVE AT COUNSEL TABLE

       At trial, the prosecutor sat at counsel table with Detective John Allgire.

Allgire was expected to testify. Kayser moved to exclude Allgire from the



                                         11
No. 71518-6-1/12



courtroom until the time of his testimony. The court denied the motion. Kayser

assigns error to this ruling. The relevant rule of evidence is ER 615. The rule

expressly permits a party such as the State, which is "not a natural person," to

designate a representative to sit in the courtroom and hear the testimony of other

witnesses:


              At the request of a party the court may order witnesses
      excluded so that they cannot hear the testimony of other witnesses,
      and it may make the order of its own motion. This rule does not
      authorize exclusion of (1) a party who is a natural person, or (2) an
      officer or employee of a party which is not a natural person
      designated as its representative by its attorney, or (3) a person
      whose presence is shown by a party to be reasonably necessary to
      the presentation of the party's cause.

ER 615. The trial court properly applied the rule.

                   STATEMENT OF ADDITIONAL GROUNDS

       Kayser filed a statement of additional grounds for review under RAP

10.10(a).

       Because Kayser had no criminal history, the standard range for his

offense was three to nine months. By statute, a mandatory three-year term must

be added when there has been a conviction for assault with a firearm. RCW

9.94A.533(3)(b). The trial court imposed a base sentence of three months and

then added three years for the enhancement. Kayser contends a court has

discretion to impose a shorter sentence in consideration of a person's age. He

relies on Miller v. Alabama.     U.S.         132 S. Ct. 2455, 183 L. Ed. 2d 407

(2012). But the holding of Miller pertains to juveniles. Kayser is not a juvenile.

This argument does not provide an additional ground for review.




                                         12
No. 71518-6-1/13


         Instruction 5 informed the jury that it had a "duty" to convict Kayser if it

believed the State had proved all elements of second degree assault. This court

has previously rejected the argument that such an instruction is erroneous. State

v. Meggvesv. 90 Wn. App. 693, 697-705, 958 P.2d 319. review denied. 136

Wn.2d 1028 (1998), abrogated on other grounds by State v. Recuenco. 154

Wn.2d 156, 162 n.1, 110 P.3d 188 (2005). We see no basis for reviewing it

again.

         Reversed.




                                                    fe>c(4^ ,
WE CONCUR:




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