                                                              FILED
                                                             MAY 1, 2018
                                                    In the Office of the Clerk of Court
                                                   WA State Court of Appeals, Division III




            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                               DIVISION THREE

STATE OF WASHINGTON,                         )         No. 34157-7-III
                                             )
                     Respondent,             )
                                             )
       v.                                    )         PUBLISHED OPINION
                                             )
JOSEPH ANDREW RICHMOND,                      )
                                             )
                     Appellant.              )

       PENNELL, A.C.J. — Joseph Richmond appeals his conviction and sentence for

second degree murder. We affirm the conviction but remand for resentencing so that

the trial court may assess whether an out-of-state conviction should be included in

Mr. Richmond’s offender score.

                                    BACKGROUND

Offense conduct

       Dennis Higginbotham went to Joseph Richmond’s property with two other

individuals, Veronica Dresp and Lonnie Zackuse. Ms. Dresp was Mr. Richmond’s
No. 34157-7-III
State v. Richmond


estranged girlfriend. Ms. Dresp had asked Mr. Higginbotham and Ms. Zackuse to

accompany her to Mr. Richmond’s property so that she could remove some of her

belongings. 1

       When the trio arrived at Mr. Richmond’s home, Ms. Dresp knocked on the door.

Although there was no answer, Ms. Dresp could see Mr. Richmond inside. Ms. Dresp

felt angry. She wanted to retrieve her belongings. Ms. Dresp advised Mr. Richmond

that if he did not open the door, she would kick it down. She also told him she would

break into the shed. To that end, she retrieved a crow bar from Mr. Higginbotham’s van. 2

As Ms. Dresp followed through on her promise to break into the shed, a police officer

arrived at the scene in response to a call from Mr. Richmond.

       The officer talked to Ms. Dresp and Mr. Richmond. It appears this helped mitigate

the situation. With the officer’s input, it was agreed Ms. Dresp would return the

following day to retrieve her belongings from inside the residence. It was also agreed

Ms. Dresp could immediately remove some belongings from a car parked on the property.



       1
          Ms. Dresp had lived at the property with Mr. Richmond as an authorized tenant.
The parties dispute whether Ms. Dresp shared Mr. Richmond’s authority over the
premises on the date of the offense conduct. We need not resolve this issue for purposes
of this appeal.
        2
          Ms. Dresp testified that she was using Mr. Higginbotham’s van because it was
the only available vehicle and it could also fit her belongings.

                                            2
No. 34157-7-III
State v. Richmond


With a plan for the removal of Ms. Dresp’s property in place, the officer left, believing

she had resolved the situation to the best of her ability. 3

       Once the officer was gone, Ms. Dresp began removing items from the car with the

help of Mr. Higginbotham and Ms. Zuckuse. Mr. Higginbotham’s presence appeared to

upset Mr. Richmond. Mr. Richmond began yelling and an oral argument ensued between

the two men. Although he was much smaller than Mr. Richmond, Mr. Higginbotham

stated he was not afraid of Mr. Richmond. He said he was at the property only to help

Ms. Dresp retrieve her belongings. Mr. Higginbotham was carrying a flashlight in his

hand at this point in time. According to Ms. Dresp and Ms. Zackuse, Mr. Higginbotham

appeared more frustrated than angry.

       Mr. Higginbotham started walking toward Mr. Richmond as the two men argued.

However, Ms. Dresp urged Mr. Higginbotham away. Mr. Higginbotham and Mr.

Richmond exchanged additional words and then Mr. Richmond went inside his house.

       Mr. Richmond’s return to the house was a relief. It appeared the hostility had

come to an end. Unfortunately, this turned out not to be true. Instead, Mr. Richmond



       3
        There was some dispute in the testimony as to when it was agreed that Ms. Dresp
could remove items from the car. Ms. Dresp and Mr. Richmond recalled the agreement
occurred after the officer left. The officer testified the agreement took place in her
presence.

                                                3
No. 34157-7-III
State v. Richmond


ran out of his house, armed with a two-by-four piece of lumber that was nearly four feet

in length. Mr. Richmond and Mr. Higginbotham then started exchanging more words.

Mr. Richmond warned Mr. Higginbotham not to come any closer to him. When Mr.

Higginbotham took a step forward, Mr. Richmond struck Mr. Higginbotham with the

two-by-four. According to Ms. Dresp and Ms. Zackuse, Mr. Richmond held the two-by-

four like a baseball bat and swung it at Mr. Higginbotham’s head. After he was hit,

Mr. Higginbotham spun around and fell face first on the ground.

      Ms. Dresp went to Mr. Higginbotham’s aide and Ms. Zackuse called 911.

Meanwhile, Mr. Richmond ran out of the back of his house and drove away in a truck.

As he left, Mr. Richmond threatened to shoot everyone if they did not leave the property.

      When emergency personnel arrived at the scene, it was determined Mr.

Higginbotham had suffered “severe head trauma.” 3 Report of Proceedings (RP)

(Feb. 4, 2016) at 513. Mr. Higginbotham was unconscious and eventually transported to

Harborview Medical Center in Seattle. He died shortly thereafter. Examiners found no

evidence of any weapons on Mr. Higginbotham’s body or in his clothing. An autopsy

concluded Mr. Higginbotham’s death was caused by a blunt force injury to his head.

Legal proceedings

      Mr. Richmond lodged a self-defense theory against the State’s murder charges. In


                                            4
No. 34157-7-III
State v. Richmond


support of this theory, Mr. Richmond sought to introduce testimony from several experts.

One of the experts was David Predmore. Mr. Predmore was proffered to testify about the

general effects of methamphetamine consumption on human behavior. According to the

defense, this testimony was relevant because high levels of methamphetamine had been

found in Mr. Higginbotham’s system at the time of his death. Although Mr. Richmond

had not been aware of Mr. Higginbotham’s methamphetamine consumption at the time of

the assault, the defense theorized that Mr. Predmore’s testimony was relevant to

corroborate Mr. Richmond’s claim that Mr. Higginbotham was behaving aggressively the

night of the attack. The trial court excluded Mr. Predmore’s testimony as speculative and

irrelevant.

       Another proposed defense expert was Dr. Robert Stanulis. Defense counsel

advised that Dr. Stanulis would testify to the “flight or fight” response as it pertained to

Mr. Richmond’s behavior the night of the attack. Clerk’s Papers (CP) at 168. Although

defense counsel furnished a curriculum vitae for Dr. Stanulis, no expert report or

summary of opinion was ever produced. None exists in the record on appeal. The trial

court excluded Dr. Stanulis’s testimony on the basis of an inadequate discovery

disclosure.




                                              5
No. 34157-7-III
State v. Richmond


       At trial, Mr. Richmond took the stand and testified in his defense. Mr. Richmond

told the jury he was in fear for his life on the night of the attack. He felt ganged up on by

Ms. Dresp and her companions. He repeatedly told the trio they needed to leave. Mr.

Richmond said that while he was trying to get Ms. Dresp and her companions to leave,

Mr. Higginbotham approached him in a “fast manner,” armed with a flashlight. 4 5 RP

(Feb. 9, 2016) at 993. Mr. Richmond then saw his dog try to sneak outside the door of

his home. Mr. Richmond moved to shut the door and then returned to his position in

front of Mr. Higginbotham. Another argument ensued. During this argument, Mr.

Richmond claimed Mr. Higginbotham approached him with what appeared to be a knife.

Mr. Richmond felt scared. He picked up a two-by-four and used it to strike down Mr.

Higginbotham. After Mr. Higginbotham fell, Mr. Richmond stated he panicked. He ran

inside his house, grabbed his dog, and left the property in a truck.

       Based on the testimony, the trial court provided the jury a full panoply of self-

defense pattern instructions. Not only did the court provide WPIC 16.02, 16.07, and

16.08 (regarding justifiable homicide and no duty to retreat) as requested by Mr.

Richmond, it also provided WPIC 16.04, as requested by the State, which explains the



       4
        The flashlight was a “standard police type Maglite,” approximately 15 inches in
length. 5 RP (Feb 8, 2016) at 698, 895.

                                              6
No. 34157-7-III
State v. Richmond


restrictions on lawful use of self-defense by an initial aggressor. 5

       During summation, the prosecutor argued the initial aggressor instruction. The

prosecutor asked the jury to focus on what happened when Mr. Richmond returned

from his house after the initial verbal confrontation with Mr. Higginbotham. The

prosecutor described Mr. Richmond’s retreat inside the house as “a moment of peace.”

6 RP (Feb. 9, 2016) at 1125. The prosecutor asked the jury to focus on this moment and

consider whether Mr. Richmond’s subsequent actions were reasonable. The prosecutor

argued it was not reasonable for Mr. Richmond to come out of his house with the two-by-

four given that the situation appeared to have calmed down. “Who’s the aggressor?” the

prosecutor asked. Id. at 1126. “The defendant is the aggressor. He doesn’t get—You

don’t even get to the question of self-defense.” Id. In her final statements to the jury, the

prosecutor argued Mr. Richmond stirred the “whole thing up” and took “it to a next level

by coming out of his house, armed with a board, screaming at them. He doesn’t get to

claim self-defense.” Id. at 1165.

       A jury convicted Mr. Richmond of second degree murder.


       5
        The jury was provided instructions based on: (1) WPIC 16.02, Justifiable
Homicide—Defense of Self and Others, (2) WPIC 16.04, Aggressor—Defense of Self,
(3) WPIC 16.07, Justifiable Homicide—Actual Danger Not Necessary, and (4) WPIC
16.08, No Duty to Retreat. 11 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY
INSTRUCTIONS: CRIMINAL 16.02, 16.04, 16.07, 16.08 (3d ed. 2008) (WPIC).

                                               7
No. 34157-7-III
State v. Richmond


       At sentencing, the State introduced a proposed judgment and sentence that

contemplated an offender score of five based, in part, on a 2004 Idaho conviction. The

court engaged counsel in a brief colloquy regarding the nature of the Idaho conviction.

The discussion focused on whether the conviction qualified as a violent offense. Defense

counsel said the offense was a nonviolent felony and likely would not even qualify as a

crime in Washington. The prosecutor and defense counsel agreed the Idaho offense

should be included in Mr. Richmond’s offender score as a nonviolent offense. Mr.

Richmond concurred with this assessment.

       At the conclusion of the sentencing hearing, the court imposed a standard range

sentence. Mr. Richmond appeals.

                                       ANALYSIS

Constitutional right to present a defense—exclusion of expert testimony

       Mr. Richmond argues the trial court violated his constitutional right to present a

defense by excluding expert testimony. We disagree. The trial court never prevented

Mr. Richmond from testifying or proffering a self-defense case to the jury. Instead, the

court excluded expert testimony proffered by Mr. Richmond because it failed to meet the

criteria for admissibility under the rules of evidence. This determination was well within




                                             8
No. 34157-7-III
State v. Richmond


the trial court’s discretion. See State v. Asaeli, 150 Wn. App. 543, 573, 208 P.3d 1136

(2009) (evidentiary rulings reviewed for abuse of discretion).

       Evidence Rule 702 governs the admissibility of expert testimony. Under this rule,

a witness may provide expert opinion testimony to the jury if (1) the witness is qualified

as an expert, and (2) the witness’s testimony would help the trier of fact. State v. Thomas,

123 Wn. App. 771, 778, 98 P.3d 1258 (2004). “Expert testimony is helpful if it concerns

matters beyond the common knowledge of the average layperson and does not mislead the

jury.” Id. A proposed expert’s testimony is not helpful or relevant if it is based on

speculation. State v. Lewis, 141 Wn. App. 367, 388-89, 166 P.3d 786 (2007); State v.

Mee Hui Kim, 134 Wn. App. 27, 41-43, 139 P.3d 354 (2006).

       The trial court properly excluded Mr. Predmore’s proposed testimony regarding

the effects of methamphetamine because it was not shown to be potentially helpful to the

jury. Mr. Predmore had never met or examined Mr. Higginbotham. He had no basis to

assess how Mr. Higginbotham’s body may have processed methamphetamine. According

to Mr. Predmore’s proposed testimony, methamphetamine can have a wide range of

effects. Increased aggression is only one possibility. It is therefore nothing but

speculation to connect Mr. Higginbotham’s methamphetamine use with Mr. Richmond’s

claim of victim aggression. The evidence was properly excluded, consistent with long-


                                             9
No. 34157-7-III
State v. Richmond


standing case law. Lewis, 141 Wn. App. at 389 (expert testimony regarding potential

effects of methamphetamine too speculative to help jury decide whether the defendant

acted in self-defense). 6

       A somewhat similar analysis holds true for Dr. Stanulis. The defense failed to

proffer the substance of Dr. Stanulis’s testimony to opposing counsel and the court in a

timely manner, despite numerous continuances. Although some sort of proffer was

eventually made to the trial court on the morning of jury selection, the substance of this

proffer is not in the appellate record. Without the ability to review the substance of the

proffer and how it might have related to Mr. Richmond’s conduct the night of the attack,

we are in no position to analyze whether Dr. Stanulis’s testimony was admissible or

whether Mr. Richmond was prejudiced by the trial court’s decision to exclude the

testimony as a discovery violation.

First aggressor jury instruction

       Mr. Richmond argues the trial court improperly issued a first aggressor instruction,

thereby vitiating his ability to argue self-defense. We disagree.



       6
         Because Mr. Richmond was not aware of Mr. Higginbotham’s drug use at the
time of the altercation, the trial court also acted within its discretion in ruling that
evidence of Mr. Higginbotham’s drug use was irrelevant and inadmissible, irregardless of
expert testimony.

                                             10
No. 34157-7-III
State v. Richmond


       A first aggressor instruction may be issued in circumstances where “(1) the jury

can reasonably determine from the evidence that the defendant provoked the fight, (2) the

evidence conflicts as to whether the defendant’s conduct provoked the fight, or (3) the

evidence shows that the defendant made the first move by drawing a weapon.” State v.

Anderson, 144 Wn. App. 85, 89, 180 P.3d 885 (2008). The State is invariably the party to

propose a first aggressor instruction. As such, the State has the burden of establishing the

instruction’s applicability. To meet this obligation, the State must point to some

evidence, beyond the defendant’s mere words, indicating the defendant intentionally

provoked the confrontation between himself and the victim. State v. Riley, 137 Wn.2d

904, 910-11, 976 P.2d 624 (1999); State v. Stark, 158 Wn. App. 952, 960, 244 P.3d 433

(2010); Anderson, 144 Wn. App. at 89. 7

       As emphasized in the prosecutor’s summation, the analysis of whether Mr.

Richmond qualified as a first aggressor must focus on what happened after the “moment

of peace,” when Mr. Richmond returned from inside his home. 6 RP (Feb. 9, 2016) at

1125; see State v. Wingate, 155 Wn.2d 817, 823, 122 P.3d 908 (2005). There is a conflict

in the parties’ proffered evidence as to what happened at this point. According to the



       7
        We review the evidence supporting a first aggressor instruction in the light most
favorable to the State. State v. Wingate, 155 Wn.2d 817, 823 n.1, 122 P.3d 908 (2005).

                                            11
No. 34157-7-III
State v. Richmond


State’s witnesses, Mr. Richmond armed himself with a two-by-four and ran outside his

home. But according to Mr. Richmond, he merely stood on his porch and reached for the

two-by-four after Mr. Higginbotham came at him with what appeared to be a knife. The

conflicting evidence justified a first aggressor instruction under the second qualifying

circumstance (a conflict in the evidence as to whether the defendant provoked the fight)

as well as the third (defendant made the first move by drawing a weapon). Anderson,

144 Wn. App. at 89.

       Mr. Richmond argues the first aggressor instruction was improper because

there was no evidence he engaged in unlawful activity prior to responding to Mr.

Higginbotham’s fateful final step. This legal argument is inapposite. The Washington

cases requiring an unlawful act for a first aggressor instruction are no longer good law.

Wingate, 155 Wn.2d at 822. As the law currently stands, the requirement is only that the

defendant’s provoking conduct be intentional. Id. That standard has been met.

       Mr. Richmond complains the trial court’s first aggressor instruction was flawed.

He claims the instruction permitted the jury to find unlawful aggression based on mere

words. Mr. Richmond also complains the instruction permitted the jury to find he was a

first aggressor even if Mr. Higginbotham’s response to Mr. Richmond was unreasonable.

We disagree with both these contentions.


                                             12
No. 34157-7-III
State v. Richmond


       The first aggressor instruction provided by the trial court was based on

WPIC 16.04. It stated:

       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, use, offer, or attempt to use force upon or toward 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.

CP at 106 (emphasis added).

       As written, the trial court’s instruction only permitted the jury to find Mr.

Richmond an initial aggressor based on an “act.” Riley, 137 Wn.2d at 913-14. Mere

words were insufficient. Id. In addition, the requirement that Mr. Richmond’s act be

“reasonably likely to provoke a belligerent response,” CP at 106, was sufficient to stop

the jury from reaching an initial aggressor conclusion based on an irrational victim

response.

       In the end, the trial court’s jury instructions did not strip Mr. Richmond of the

ability to claim self-defense. The court’s instructions were not limited to the first

aggressor instruction. They also contained Mr. Richmond’s proposed self-defense

instructions, including an instruction advising the jury that Mr. Richmond had the right to

stand his ground and defend himself from attack. As written, the court’s instructions

empowered the jury to make an appropriate legal determination regarding self-defense,

                                             13
No. 34157-7-III
State v. Richmond


based on the testimony the jurors found most persuasive. Had the jury believed the facts

proffered by Mr. Richmond in support of self-defense, the first aggressor instruction

would not have relieved the State of its burden of proof or negated the self-defense claim.

See Stark, 158 Wn. App. at 960-61; State v. Douglas, 128 Wn. App. 555, 563, 116 P.3d

1012 (2005). Even under the applicable de novo standard of review, Stark, 158 Wn. App.

at 959, the instruction was proper.

Confrontation right and constitutional right to present a defense

       Mr. Richmond claims the trial court improperly restricted his ability to question

Ms. Dresp and Ms. Zackuse about their drug use on the day of the attack. This claim is

unsupported by the record. The trial court stated it had “no problem” with the defense

asking witnesses about their methamphetamine use on the day of the offense. 1 RP

(Jan. 27, 2016) at 174. Such questioning was relevant to the witnesses’ credibility. The

lack of questions regarding drug use was the result of defense counsel’s choice not to

engage in this line of inquiry, not any ruling by the trial court. We will not review this

strategic decision on appeal.

       Mr. Richmond also complains he was not allowed to introduce testimony that Ms.

Dresp and Ms. Zackuse had used methamphetamine with Mr. Higginbotham on the day of

the offense. According to Mr. Richmond, this evidence was relevant to show the


                                             14
No. 34157-7-III
State v. Richmond


witnesses’ relationship to Mr. Higginbotham and their bias toward him. We find no

abuse of discretion in the trial court’s ruling. Evidence of Mr. Higginbotham’s

methamphetamine use had the potential of being improperly analyzed as bad character

evidence. This potential for prejudice was not offset by any significant probative value.

The jury knew Ms. Dresp and Ms. Zackuse were close friends with Mr. Higginbotham. 8

Evidence of the trio’s shared drug use would not have appreciably enhanced the jury’s

ability to assess potential bias. The trial court acted within its discretion under ER 404(b)

and ER 403 in excluding the evidence. State v. Darden, 145 Wn.2d 612, 621-22, 41 P.3d

1189 (2002) (citing State v. Hudlow, 99 Wn.2d 1, 15, 659 P.2d 514 (1983)).

Out-of-state conviction and offender score

       Mr. Richmond argues his Idaho conviction should not have been included in his

offender score. According to Mr. Richmond, inclusion of the Idaho conviction was

improper because the Idaho statute underlying his conviction is not comparable to any

Washington felony offense, as required by RCW 9.94A.525(3). The State suggests we

should decline review of this issue because Mr. Richmond affirmatively acknowledged




       8
         Ms. Dresp described Mr. Higginbotham as “a good friend of mine.” 2 RP
(Feb. 3, 2016) at 261. Ms. Zackuse described Mr. Higginbotham as a friend she hung
out with “almost every day.” 3 RP (Feb. 3, 2016) at 429.

                                             15
No. 34157-7-III
State v. Richmond


the comparability of his Idaho conviction during the sentencing hearing. 9

       The State bears the burden of proving the existence of prior convictions used

to enhance a defendant’s sentencing range. State v. Mendoza, 165 Wn.2d 913, 920,

205 P.3d 113 (2009). This burden must be met, regardless of whether a defendant lodges

an objection during the sentencing process. State v. Ford, 137 Wn.2d 472, 482, 973 P.2d

452 (1999). It is only when a defendant affirmatively acknowledges the facts and

information necessary to justify use of a prior conviction in his or her offender score that

the State is relieved of presenting evidence documenting the existence of prior

convictions. State v. Hunley, 175 Wn.2d 901, 912, 287 P.3d 584 (2012).

       The record before us does not warrant finding an affirmative acknowledgement.

Although defense counsel recognized Mr. Richmond had an Idaho felony conviction and

ultimately accepted the State’s offender score calculation, neither defense counsel nor

Mr. Richmond ever affirmatively acknowledged that the Idaho conviction was legally

comparable to a Washington offense. To the contrary, defense counsel specifically

disputed the legal comparability of the Idaho conviction. It is unclear why, given defense

counsel’s position, the defense ultimately concurred with the State’s offender score


       9
        The State acknowledges that if this court has some concern about the legality of
Mr. Richmond’s offender score calculation, then remand may be an appropriate remedy.
Resp’t’s Br. at 51.

                                             16
No. 34157-7-111
State v. Richmond


calculation. But we need not resolve this conundrum. A defendant's mere agreement

with the State's offender score calculation and admission of the existence of an out-of-

state conviction is insufficient to constitute an affirmative acknowledgment that an out-

of-state conviction meets the terms of the comparability analysis. State v. Lucero,

168 Wn.2d 785, 789, 230 P.3d 165 (2010). Under the circumstances here, the State

was not relieved of its burden to prove the facts justifying inclusion of the Idaho

conviction in Mr. Richmond's offender score.

       The appellate record lacks sufficient information to resolve the question of

whether Mr. Richmond's Idaho conviction should have been included in the offender

score. We therefore remand for resentencing on this issue. Ford, 137 Wn.2d at 485-86.

                                     CONCLUSION

       We affirm Mr. Richmond's conviction but remand to the trial court with

instructions to conduct a comparability analysis and assessment of Mr. Richmond's

offender score. Mr. Richmond's request to deny costs is granted.




                                          Pennell, A.CJ.
I CONCUR:




Siddoway,   1:
                                             17
                                       No. 34157-7-III

       FEARING, J. (dissenting) — I disagree with the majority that sufficient facts

supported a first aggressor jury instruction. Therefore, I dissent.

       The majority writes, on page four, that Joseph Richmond “ran out of his house,

armed with a two-by-four piece of lumber that was nearly four feet in length.” The

opinion contains other references to Richmond running from inside the residence to the

outdoors with the two-by-four. From these principal facts, the majority concludes the

evidence justified a first aggressor instruction. I disagree.

       Joseph Richmond, Dennis Higginbotham, whose mouth Richmond silenced, and

Veronica Dresp, Richmond’s former girlfriend, witnessed the immediate events leading

to Dennis Higginbotham’s death. Dresp testified to Richmond’s return outside his house

with a board in his hand as follows:

              [T]he next thing I see Joe [Richmond] running—you know, he came
       back outside, and—they start—they were exchanging more words, and—
       Joe said, “If you come any closer,” you know,—or, he said, “Don’t come
       any closer. I’m warning you.” And then—then—I mean, Dennis
       [Higginbotham] took one more step closer and that’s when—when he hit
       him.
No. 34157-7-III
State v. Richmond (dissenting)


Report of Proceedings (RP) at 292. Dresp later averred:

            Q And you said Joe came running back out of the house. Did he
      have anything in his hands at that point.
            A He had something behind his hands—or, behind his back—kind
      of—I mean, I couldn’t see it at first. But—by the time I realized what was
      going on it was too late.
             Q Okay. What did Joe do?
             A He—hit him.

RP at 293.

      On cross-examination, Veronica Dresp testified:

             A He [Joseph Richmond] came out and—stepped off the porch,
      and—I mean, I couldn’t see the board at first, because it was more behind
      his back, but then, you know,—then they started walking towards each
      other,—and—‘cause, I mean—
             Q So Dennis and Joe—
             A He wasn’t—
             Q —were both walking towards each other. Is that—
             A Just like—they took like a foot or two—

RP at 381. Veronica Dresp declared further:

              Q And did you—and you—This morning you said you heard Joe
      say something to Dennis at this point. —tell him—something about getting
      closer, “Don’t come closer,”—
              A He said, “Don’t”—Yeah. He said, “Don’t—don’t come any
      closer. I’m warning you.”
              Q Okay. And then what did Dennis do after Joe said that?
              A I mean, he took a step closer.
              Q And that’s when—Dennis got struck with the board.
              A Right.

RP at 381-82.

                                           2
No. 34157-7-III
State v. Richmond (dissenting)


       Jury instruction 20, the first aggressor instruction to which Higginbotham

objected, read:

              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, use, offer, or attempt to use force upon or toward 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.

Clerk’s Papers (CP) at 106 (emphasis added). Nevertheless, we should consider the

evidence not only in light of the aggressor instruction, but a second instruction that

recognized Joseph Richmond’s right to stand his ground. Jury instruction 19 informed

the jury that Joseph Richmond need not have retreated from Dennis Higginbotham. The

instruction declared:

               It is lawful for a person who is in a place where that person has a
       right to be and who has reasonable grounds for believing that he is being
       attacked to stand his ground and defend against such attack by the use of
       lawful force. The law does not impose a duty to retreat.

CP at 105.

       Washington decisions recognize that the first aggressor instruction may deprive an

accused of the ability to claim self-defense. State v. Wasson, 54 Wn. App. 156, 160, 772

P.2d 1039 (1989). Therefore, few situations warrant an aggressor instruction. State v.

Arthur, 42 Wn. App. 120, 125 n.1, 708 P.2d 1230 (1985); State v. Wasson, 54 Wn. App.


                                              3
No. 34157-7-III
State v. Richmond (dissenting)


at 161. The theories of the case can usually be sufficiently argued and understood by the

jury without the instruction. State v. Arthur, 42 Wn. App. 125 n.1.

       The majority writes that the State need no longer show that the defendant engaged

in an unlawful act in order to garner the first aggressor instruction. I do not consider this

principle important to our decision. The State still must show a provoking act by the

defendant other than the assault or murder itself. The provoking act that justifies a first

aggressor instruction must be one that a jury could reasonably assume would provoke a

belligerent response by the victim. State v. Bea, 162 Wn. App. 570, 577, 254 P.3d 948

(2011); State v. Wasson, 54 Wn. App. at 159. Also, the trial court errs when it submits an

aggressor instruction and the evidence shows that the defendant used words alone to

provoke the fight. State v. Riley, 137 Wn.2d 904, 910-11, 976 P.2d 624 (1999); State v.

Anderson, 144 Wn. App. 85, 89, 180 P.3d 885 (2008).

       The rule controlling our appeal is that the provoking act cannot be the actual

assault in order to warrant the giving of the first aggressor instruction. State v. Kidd, 57

Wn. App. 95, 100, 786 P.2d 847 (1990); State v. Wasson, 54 Wn. App. at 159; State v.

Brower, 43 Wn. App. 893, 902, 721 P.2d 12 (1986). Joseph Richmond performed no

provoking act until the deadly assault.

       As noted by the majority, a court properly submits an aggressor instruction when

(1) the jury can reasonably determine from the evidence that the defendant provoked the
                                              4
No. 34157-7-III
State v. Richmond (dissenting)


fight, (2) the evidence conflicts as to whether the defendant’s conduct provoked the fight,

or (3) the evidence shows that the defendant made the first move by drawing a weapon.

State v. Riley, 137 Wn.2d at 909-10; State v. Anderson, 144 Wn. App. at 89. I discern no

difference between the first and second circumstances under which to render the

instruction. The trial court commits error when delivering the first aggressor instruction

when not supported by the evidence. State v. Wasson, 54 Wn. App. at 158-59 (1989).

       This court must decide if sufficient evidence supported the first aggressor

instruction. I agree with the majority that we must view the evidence in the light most

favorable to the State. When reviewing a claim for the sufficiency of the evidence, we

consider whether, after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt. State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980).

When the defendant challenges the sufficiency of the evidence in a criminal case, all

reasonable inferences from the evidence must be drawn in favor of the State and

interpreted most strongly against the defendant. State v. Salinas, 119 Wn.2d 192, 201,

829 P.2d 1068 (1992). Nevertheless, when an inference is part of the prosecution’s proof

supporting an element of the crime, due process requires the presumed fact to flow more

likely than not from proof of the basic fact. State v. Hanna, 123 Wn.2d 704, 710, 871

P.2d 135 (1994). Whether an inference meets the appropriate standard must be
                                             5
No. 34157-7-III
State v. Richmond (dissenting)


determined on a case-by-case basis in light of the particular evidence presented to the

jury in each case. State v. Hanna, 123 Wn.2d at 712. A mere scintilla of evidence does

not rise to the level of sufficiency in order to support a conviction. State v. Kirkpatrick,

14 Wn. App. 212, 216, 540 P.2d 450 (1975). Instead, the State must present substantial

evidence. State v. Randecker, 79 Wn.2d 512, 517, 487 P.2d 1295 (1971).

       The testimony of Veronica Dresp, the sole independent witness, fails to support a

conclusion or inference that Joseph Richmond provoked a reaction in Dennis

Higginbotham that required Richmond to act in self-defense. None of the testimony

states that Richmond ran toward Higginbotham in a threatening manner. If one reads the

entirety of Dresp’s trial testimony, one questions whether Richmond ran at all. The

testimony suggests he walked out of the house. Dresp spoke figuratively when using the

word “running” and then the State’s attorney later employed the same verb when

questioning. Dresp also testified that Richmond “came out and—stepped off the porch,”

language that does not connote “running.” RP at 381. Dresp states Richmond and

Higginbotham later stepped toward one another, testimony that confirms that at least

Richmond did not run at Higginbotham. Even if we assume that Richmond ran out of the

house, which we should do based on principles of review, the trial still lacked testimony

that Richmond ran toward Higginbotham in a threatening manner.


                                              6
No. 34157-7-III
State v. Richmond (dissenting)


       We should consider additional evidence. Although Joseph Richmond owned the

residence, I assume that Veronica Dresp held the right to enter the premises to retrieve

her personal belongings. Still, Dresp used a crowbar to break and enter Richmond’s

shed. A police officer calmed the situation, but Richmond thereafter exchanged taunts

with Dennis Higginbotham, who assisted Dresp in retrieving belongings from a vehicle.

Richmond did not desire Higginbotham on his property. Higginbotham walked toward

Richmond and the two volleyed further affronts. Richmond entered his house and

returned with the two-by-four.

       Richmond stepped from the back steps and then walked toward Higginbotham.

The two exchanged more verbal assaults and Richmond told Higginbotham not to step

further. The trial lacked evidence that Richmond raised the board in a threatening

manner before Richmond stepped toward Higginbotham and slammed him with the

board. According to Veronica Dresp, Richmond held the board behind his person until

he attacked Higginbotham.

       Assuming we believe Joseph Richmond’s story he never threatened Dennis

Higginbotham before Higginbotham approached him with a knife. Under this version of

the facts, Richmond did not engage in provocation before he acted in self-defense.

Assuming we believe the State’s facts, Joseph Richmond attacked Higginbotham without

any advance provocation, other than words and by walking toward Higginbotham before
                                             7
No. 34157-7-III
State v. Richmond (dissenting)


Higginbotham walked toward Richmond. The duo exchanged hostile words, but did not

fight. Richmond committed a unilateral assault.

       The majority emphasizes that Joseph Richmond carried a board in his hand.

Nevertheless, under the State’s evidence, Dennis Higginbotham did not move to strike

Richmond because of the board. The parties faced each other and stood still while

Richmond held the board. Walking with a two-by-four in one’s hand does not reasonably

provoke a fight, when one stops short of the victim and warns the victim not to step

forward. Higginbotham stood on Richmond’s property and Richmond held the right to

stand his ground and order Higginbotham to leave. The majority’s holding conflicts with

the right to stand one’s ground as instructed by the trial court in jury instruction 19.

       Assuming the majority considers the two-by-four to constitute a weapon,

Richmond possessed the right to hold the board to defend himself in the event

Higginbotham attacked him first. Even if Richmond bore a gun, the constitution would

protect his conduct. U.S. CONST. amend. II; WASH. CONST. art. 1, § 24.

       Because we determine the inferences we can draw from the evidence on a case-by-

case basis and because of the esoteric nature of determining the sufficiency of the

evidence, reviewing the facts of reported decisions assists in the resolution of this appeal.

In State v. Anderson, 144 Wn. App. 85 (2008), this court affirmed the rendering of a first

aggressor jury instruction. Testimony established that the defendant leaned over a victim
                                              8
No. 34157-7-III
State v. Richmond (dissenting)


with his hands on the arms of the victim’s chair and yelled in her face. Joseph Richmond

did not get in Dennis Higginbotham’s face, but rather stood back and told Higginbotham

not to come closer.

       In State v. Riley, 137 Wn.2d 904 (1999), the Supreme Court affirmed the delivery

of a first aggressor instruction. The jury heard evidence that Riley drew his gun first and

aimed it at a victim. The testimony showed that Joseph Richmond kept the board behind

his back and did not raise the lumber until he fatally battered Dennis Higginbotham.

       In State v. Wingate, 155 Wn.2d 817, 823, 122 P.3d 908 (2005), the Supreme Court

again affirmed the rendering of a first aggressor jury instruction. Wingate drew a gun

after a confrontation between his friend and another had ended. The drawing of the gun

constituted the act of first aggression.

       Washington courts, in other cases similar to the facts in Joseph Richmond’s

appeal, reversed convictions because the evidence failed to support a first aggressor

instruction. In State v. Wasson, 54 Wn. App. 156 (1989), this court reversed Rodger

Wasson’s conviction of second degree assault. Wasson and his cousin Billy Bartlett

quarreled in an alley outside Bartlett’s apartment. Wasson entered his car and repeatedly

revved the engine of the vehicle. Bartlett broke the driver’s side window of the car.

Wasson exited his car with a gun in hand, but Wasson did not assault Bartlett. The

commotion attracted neighbor Thomas Reed, who exited the apartment complex and told
                                             9
No. 34157-7-III
State v. Richmond (dissenting)


the other two men to quiet. Reed and Bartlett exchanged blows, and one blow from Reed

knocked Bartlett to the ground. Reed then walked toward Wasson. According to

Wasson, he concluded Reed had stabbed Bartlett. Also, Reed approached him and

informed him that Reed would attack him next. Wasson told Reed to stop and fired after

Reed continued to approach him. According to Reed, Reed uttered no threats to Wasson

after Reed fought Bartlett. Also, Reed did not strike Wasson.

       In State v. Wasson, this court reversed Rodger Wasson’s conviction because the

trial court rendered a first aggressor instruction without evidence to support the

instruction. This court emphasized the right of Wasson to stand his ground when Thomas

Reed walked toward him.

       In State v. Arthur, 42 Wn. App. 120 (1985), this court reversed another conviction

for second degree assault because of the rendering of the first aggressor instruction. The

instruction indicated that the State must prove that the defendant performed an unlawful

act that created the necessity for self-defense, and this court held such an instruction void

for vagueness. Still the decision notes the absence of evidence to support the instruction

and announces the proposition that trial courts should rarely grant the instruction.

       In State v. Arthur, William Arthur stabbed Terry Waterhouse. Waterhouse

testified he and friends visited in a parking lot, when a drunken and abusive Arthur

approached the group. When Arthur got “in his face,” Waterhouse pushed Arthur to the
                                             10
No. 34157-7-III
State v. Richmond (dissenting)


ground. State v. Arthur, 42 Wn. App. at 121. Waterhouse and his friends then went to a

tavern. Waterhouse later returned to the same parking lot. Arthur also returned and

pulled his vehicle into a space in the lot. Arthur abruptly pulled his automobile from the

parking spot at high speed, hit a car in an adjoining space, and his car ended in a ditch.

Waterhouse ambled to Arthur’s vehicle to prevent Arthur from leaving the scene of an

accident. When Waterhouse reached into Arthur’s car, Arthur stabbed him. Arthur

testified that he acted in self-defense because he feared Waterhouse would attack him.

This reviewing court noted that the only possible provoking act committed by Arthur was

the collision with the other vehicle, but that Arthur had withdrawn from the parking lot.

Arthur performed no immediate act that provoked Waterhouse to respond with violence.

       In State v. Brower, 43 Wn. App. 893 (1986), a jury convicted Ted Brower of

second degree assault. Brower journeyed to Claudia Hoyt’s apartment to retrieve his car.

Brower feared Hoyt or her friends would be armed, so he brought his firearm to use as a

last resort. Frederick Martin occupied Hoyt’s residence when Brower arrived. Martin

grew agitated with Brower. When Brower left the apartment and walked down stairs,

Martin trailed Brower. Brower turned and stuck his revolver in Martin’s stomach and

told him to return to the apartment. This court reversed the conviction because of the

lack of evidence to support the giving of a first aggressor instruction. Assuming Brower

to be the first aggressor, the first aggression occurred when Brower assaulted Martin.
                                             11
No. 34157-7-III
State v. Richmond ( dissenting)


Although Brower armed himself before traveling to Hoyt's apartment, Brower possessed

the right to carry the firearm. A broad reading of Brower champions the proposition that

arming oneself does not constitute an act that reasonably provokes a belligerent response.

       I would remand for a new trial because of the rendering of the first aggressor jury

instruction. The jury may still reject Joseph Richmond's self-defense defense and find

him guilty of second degree murder.



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