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          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON


STATE OF WASHINGTON,                             NO. 70243-2-


                    Respondent,                  DIVISION ONE

                    v.



MICHAEL LOVEJOY GRUNDY,                          UNPUBLISHED OPINION

                    Appellant.                   FILED: July 28, 2014



       Lau, J. — A court must give an inferior degree offense instruction if, among other

things, there is affirmative evidence that only the inferior degree offense was committed.
In this prosecution for second degree assault, the court gave an inferior degree
instruction for third degree assault but refused to give one for fourth degree assault.
Because there was evidence supporting an inference that Michael Grundy committed

only fourth degree assault when he punched Darius Babcock in the face, the trial court
erred in refusing Grundy's request for a jury instruction on fourth degree assault. We
reverse Grundy's conviction for third degree assault and remand for further

proceedings.
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                                          FACTS


       Based on allegations that Grundy punched Babcock in the face at a college party

and broke his jaw, the State charged Grundy with second degree assault.

       At trial, the evidence established that on May 21, 2011, Grundy and Darius

Babcock were students at Western Washington University in Bellingham. Babcock

testified that he went to a house party that night with his friend Kevin. People at the

party were drinking alcohol, dancing, and playing "beer pong." After about two hours,

the police arrived and Babcock left.

       He walked several blocks to another house that was surrounded by a small

crowd of people and police cars. There was some commotion in the crowd and the

homeowner was yelling at people to get off his lawn. Babcock was standing in the

street when a police officer started telling everyone to calm down and go home.

      The next thing Babcock knew, he was picking himself up from the ground and

feeling pain in his jaw. Police told him what had happened. It is undisputed that Grundy

punched Babcock and fractured his jaw. The injury required surgery and caused

Babcock pain for six months.

       Grundy testified that he went to the same two houses that Babcock went to that

night. At the house where the assault later occurred, an intoxicated Grundy leaned on a

car for balance as he tried to call a friend to pick him up. As police cleared the crowd

away from the house and into the street, three or four young men suddenly approached

Grundy, demanded to know what he was doing, and told him to "get the fuck off the

car." 3 Verbatim Report of Proceedings (Mar. 13, 2013) (VRP) at 483-84. When
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Grundy, who is black, explained that he was trying to make a phone call, the men said,

"[G]et off the car, nigger." VRP at 485.

       Grundy testified that the next time he looked up, the group of three young men

had grown to eight. They continued to demand that he "get the fuck out of here." VRP

at 485. Grundy realized that he was still leaning on the car. When he stepped back

from the car, his friend, Yonas Ayele, arrived.

       Ayele testified that he saw a group of eight or ten people around Grundy and

heard someone say, "[G]et the fuck off the car." VRP at 357. He asked what was going

on, and they said, "This nigger wouldn't get off the car." VRP at 357. The group then

demanded "in a more aggressive tone" that Grundy "get the fuck off the block." VRP at

359.


       At this point, another friend of Grundy's, Mulu Gebreselsae, arrived.

Gebreselsae testified that the group grew from seven or eight to "16 people surrounding

us." VRP at 416. Some of the crowd took their shirts off, and Gebreselsae felt

threatened. He felt they "were getting ready to fight." VRP at 418. The crowd began to

close in on Grundy, Ayele, and Gebreselsae. All three described people in the crowd

with "balled up" fists. VRP at 419. Gebreselsae testified, "[T]he crowd kept getting

closer and closer," and his space "was getting smaller." VRP at 419. When asked how

close the crowd was to Grundy, Gebreselsae said, "Close, face to face." RP at 448.

       Grundy testified that the group started "really making threats like coming toward

us, closing in on us." VRP at 492. Grundy heard people in the crowd muttering to each

other, "[L]et's kick their ass," and "We can take these guys." VRP at 487, 490.



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       Around this time, the police arrived. Some people stopped harassing Grundy,

but others did not seem to care about the police. Grundy testified that he was facing the

crowd, not the police, and did not dare turn his back to see how far away the police

were or what they were doing.

      Ayele testified that Babcock was in the crowd that was harassing Grundy and

was repeating the same types of things the others were saying. The group "started

approaching [Grundy.]" VRP at 363. Ayele described the crowd's behavior as "angry"

and "aggressive." VRP at 379. Noting that they were outnumbered, Ayele testified that

he felt threatened and was scared "[t]hat we were going to get jumped by those guys."

VRP at 403.


      Grundy testified that he heard someone saying, "[Y]ou are still here? . .. [Tjhis

guy really wants to get his ass kicked." VRP at 506-07. Then someone in the crowd

yelled, "[WJhere your friends at now?" VRP at 507. Grundy looked around and did not

see Ayele or Gebreselsae. He saw four or five young men from the group move toward

him. He tried to move to the left but found his path blocked by Babcock. Grundy

thought Babcock "was trying to box me in, cut me off." RP 510. Grundy dropped his

head and swung at Babcock in an attempt to clear a path out of the group. Grundy

testified that he aimed for Babcock's upper body, not his jaw, and denied any intent to

injure. He had no "reason to believe that throwing that punch would cause that kind of

injuryf.]" VRP at 514.

       Grundy looked up briefly and then ran away from both the crowd and the police.

When he saw a police car in front of him, he stopped, but then heard footsteps behind
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him. Fearing the crowd was still after him, he kept running until police hit him with a

taser.


         Bellingham Police Officer Ben Horton testified that he had an unobstructed view

of the crowd, including Babcock and Grundy. Without any warning or observable

provocation, Grundy suddenly lunged toward Babcock and hit him in the face with his

fist. Officer Horton called the punch a "haymaker," which he defined as a punch

preceded by the puncher cocking his fist and shoulder to gain momentum and power.

Grundy then stood up, looked at the officers, and then fled on foot. During the ensuing

foot chase, the officers identified themselves as police and told Grundy to stop. He kept

running. The officers warned him that he would be "tasered" if he did not stop

immediately. When Grundy continued to run, the officers successfully "tasered" him

and subsequently arrested Grundy.

         Bellingham Police Officer Kevin Freeman testified that he did not see the punch

but heard a thud and saw Grundy, Babcock, and a young woman fall to the ground in

front of him. Freeman asked Grundy why he punched Babcock and Grundy said, "[H]e

hit me first." 2 VRP (Mar. 12, 2013) at 130.

         Following extensive arguments on whether the court should instruct the jury on

the inferior degree offenses of third and/or fourth degree assault, the court ruled that it

would instruct the jury only on second and third degree assault. The court also

instructed the jury on self-defense.

         During deliberations, the jury submitted the following inquiry: "Is there a lesser
charge available than what we have at this time?" The court responded, "You must rely
solely upon the instructions before you." The jury found Grundy not guilty of second
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degree assault and convicted him of third degree assault. The court imposed a

sentence of 90 days' confinement with 30 days to be served in jail alternatives. Grundy

appeals.

                                        DECISION

       Grundy contends the court erred in refusing to instruct the jury on fourth degree

assault. He argues that the jury heard evidence that, if believed, would support a

conclusion that only fourth degree assault occurred. We agree.

      A defendant is entitled to an instruction on an inferior degree offense if (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 448, 454-55, 6 P.3d 1150 (2000). In determining

whether the evidence supports the giving of an inferior degree instruction, we view the

evidence in the light most favorable to the party that requested the instruction."

Fernandez-Medina, 141 Wn.2d at 455-56. We review a trial court's decision on an

inferior degree offense instruction de novo. See Fernandez-Medina, 141 Wn.2d at 454

(stating three-part test that includes legal and factual components); State v. Dearbone.

125 Wn.2d 173, 178, 883 P.2d 303 (1994) (noting that mixed questions of law and fact

are reviewed de novo).

       Here, the court instructed the jury on second and third degree assault. To

convict Grundy of second degree assault under the court's instructions, the jury had to

find that Grundy "intentionally assaulted DJ Babcock" and "thereby recklessly inflicted

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substantial bodily harm         " See RCW 9A.36.021(1)(a). The instructions stated that a

person "acts recklessly when he or she knows of and disregards a substantial risk that a

particular result, to wit: substantial bodily harm, may occur and this disregard is a gross

deviation from conduct that a reasonable person would exercise in the same situation."

(Emphasis added.) See RCW 9A.08.010(1)(c). To convict Grundy of third degree

assault, the jury had to find that, "with criminal negligence," Grundy "caused bodily harm

to DJ Babcock . .. [t]hat. .. was accompanied by substantial pain that extended for a

period of time sufficient to cause considerable suffering^]" The instructions stated that a

person acts with "criminal negligence" if he or she "fails to be aware of a substantial risk

that a wrongful act may occur and his or her failure to be aware of such substantial risk

constitutes a gross deviation from the standard of care that reasonable person would

exercise in the same situation." RCW 9A.08.010(1)(d).

       The court did not instruct the jury on fourth degree assault. A person commits

fourth degree assault if he or she "under circumstances not amounting to assault in the

first, second, or third degree . . . assaults another." (Emphasis added.) RCW

9A.36.041: State v. Taylor. 140 Wn.2d 229, 237, 996 P.2d 571 (2000); State v. Wilson,

125 Wn.2d 212, 217-18, 883 P.2d 320 (1994). Fourth degree assault may be

committed by intentionally committing an unlawful touching or striking, regardless of

whether physical harm results. State v. Davis, 60 Wn. App. 813, 821, 808 P.2d 167

(1991). The intent for this form of assault is simply intent to do the physical act. State

v. Jarvis, 160 Wn. App. 111, 117 n.4, 119, 246 P.3d 1280 (2011) (intent for the

intentional touching or striking form of assault "is merely the intent to make physical

contact with the victim . . . .").

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         Grundy contends, as he did below, that the court was required to instruct the jury

on fourth degree assault because it is an inferior degree offense and there was

evidence supporting a conclusion that only fourth degree assault occurred. Noting that

the higher degrees of assault require a guilty mental state regarding the scope or risk of

the harm inflicted, Grundy contends his testimony supported inferences that he lacked

those mental states and therefore committed an assault "under circumstances not

amounting to assault in the first, second or third degree .. . ." RCW 9A.36.041. We

agree.

         First degree assault requires intent to inflict great bodily harm. RCW 9A.36.011.

Grundy testified, however, that he did not intend to injure Babcock. If believed, this

testimony would establish that Grundy did not commit first degree assault.

         Second degree assault requires an assault with reckless infliction of substantial

bodily harm. The recklessness element requires knowledge ofa substantial risk that a
wrongful act may occur, as well as a disregard of the risk that amounts to a gross

deviation from what a reasonable person would do under the circumstances. Grundy

testified that there was an imminent threat to his safety, that he punched to open a path

to escape, that he aimed for Babcock's uppertorso, that he did not intend to injure
Babcock, and that he had no reason to believe that his punch "would cause that kind of

injury." Viewed in a light most favorable to Grundy, this testimony could support
conclusions that he did not act with knowledge of a substantial risk of a wrongful act or

that his conduct was not a gross deviation from what a reasonable person would do
given the threat he perceived. Either of these conclusions would preclude a conviction
for second degree assault.

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       The same testimony could support a conclusion that third degree assault did not

occur. As noted above, third degree assault requires a failure to be aware of a

substantial risk that a wrongful act may occur, which failure amounts to a gross

deviation from the standard of care. Grundy's testimony, if believed, could support a

conclusion that, under all the circumstances, his failure to be aware of the risk that his

act could be wrongful was not a gross deviation from the standard of care. Such a

conclusion would preclude a conviction for third degree assault.

       Thus, viewed in a light most favorable to Grundy, his testimony supports a

conclusion that the assault occurred under circumstances not amounting to the higher

degrees of assault and that only fourth degree assault was committed.1

       We reject the State's argument that fourth degree assault did not occur because

"[t]he only way to commit fourth degree assault is to intentionally touch someone without

inflicting bodily harm." Resp't's Br. at 14. Fourth degree assault is not defined by the

degree of harm inflicted. Rather, it includes any harmful touching or striking occurring

"under circumstances not amounting to assault in the first, second, or third degree .. .."

RCW 9A.36.041; State v. Tyler, 138 Wn. App. 120, 130, 155P.3d 1002(2007). An

assault does not amount to first, second, or third degree assault, and is therefore fourth

degree assault, ifan intentional touching or striking results in harm but either the

requisite mental state or degree of injury for the higher degrees of assault are not


       1We note that a conclusion that Grundy's conduct was not a gross deviation
from the standard of care would not necessarily mean that Grundy acted in self-defense
and, thus, did not commit fourth degree assault. Rather, a jury could conclude that his
punch, while not a gross deviation from the standard of care, nevertheless was thrown
with more force than necessary under the circumstances and thus was not lawful self-
defense.
70243-2-1/10



satisfied. See RCW 9A.36.041. As discussed above, the jury in this case could infer

from the evidence that the mental states for first, second, and third degree assault were

not satisfied.


         The trial court erred in refusing to give the requested instruction on fourth degree

assault.


         Reversed and remanded for further proceedings.2




WE CONCUR:




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         2 Given this disposition, we need not address Grundy's remaining assignments of
error.

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