                                                                                                   CCuk
                                                                                                              FILED
                                                                                                          T OF APPEALS
                                                                                                          tJEVESION Tl
                                                                                                  20IR, AFR 22 AN 8: 33

                                                                                                          C   W
    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTt &                                                           HINGTOU
                                                                                                  nY
                                                 DIVISION II


STATE OF WASHINGTON,                                                       No. 44115 -2 -II


                                     Respondent,


         v.

                                                                          Consolidated with

GORDON EUGENE DICKSON,

                                     Appellant.
STATE OF WASHINGTON,                                                       No. 44118 -7 -II


                                     Respondent,


         v.



JUSTIN ALEXANDER DICKSON,                                            UNPUBLISHED OPINION


                                      Appellant.


         WoRSwICK, C. J. —         A jury returned verdicts finding Gordon Dickson and Justin Dickson

guilty of second degree assault. Gordon and Justin' appeal their convictions, each asserting that
 1) there was insufficient evidence in support of their second degree assault convictions, and (2)

their trial counsel were ineffective for failing to request lesser included or inferior degree fourth

degree   assault    jury   instructions.   Justin also asserts that his defense counsel was ineffective for

failing to object to Gordon' s defense counsel' s improper closing argument, which argument

Justin contends misstated the burden of proof with regard to self defense. We affirm.
                                                                  -



1 Because Gordon and Justin Dickson share a last name we refer to both by their first names,
intending     no   disrespect.
No. 44115 -2 -II
Consolidated with No. 44118 -7 -II




                                                             FACTS


         In November 2011, Craig Ripley was driving to his friend' s house in Tumwater,

Washington when a gray Saturn sedan exited a gas station lot and pulled out into the road in

front of Ripley' s pickup truck. Gordon was the driver of the Saturn. Gordon' s son, Justin, was
in the passenger seat of the Saturn and Justin' s girlfriend was in the backseat. After Gordon

exited the gas station and entered the street in front of Ripley' s truck, Ripley honked his horn.

           According to Ripley, Gordon responded by extending his " middle finger out the driver' s
door."     Report of Proceedings (RP) at 65. Ripley " gave the middle finger back" and Justin

gestured    to   Ripley   to   pull   his truck     over.   RP   at   66..   Gordon pulled his vehicle over, and Ripley

continued driving. A short time later, Ripley arrived at the front gate entrance to his friend' s
property and saw Gordon parking the Saturn behind his truck. Ripley and Gordon began arguing
with each other while sitting in their respective vehicles. Justin then exited the Saturn, walked
toward     Ripley,   and said, "      I' m   a   black belt. I' m     a   black belt." RP       at   75.   Justin started hitting the

 small window located behind Ripley' s driver' s side door, and Ripley exited his vehicle. Gordon

 then exited the Saturn, walked toward Ripley, and stated that he was also a black belt.

           Ripley stated that he became frightened and wrote down the Saturn' s license plate
 number as Gordon was approaching. Gordon approached Ripley to the point where he and

 Ripley were almost nose to nose, and then Gordon began talking close to Ripley' s face. Gordon
 then bumped Ripley " with his belly to the point where [ Ripley was] all the way against [ his]
 truck."    RP at 80. Justin then hit Ripley in the face several times. Ripley felt that he was
                                                                          life. RP        80.                       that   Gordon may
  getting knocked         out" and started         fearing for his                   at         Ripley     stated
No. 44115 -2 -II
Consolidated with No. 44118 -7 -II




have been hitting him and may have kicked his right leg, but all he could clearly remember was

Justin' s punches to his face. As he was being hit, Ripley saw a man driving a bucket loader pull

                             heard the driver tell Gordon         Justin to " knock it           RP at 83.
up behind the Saturn   and                                  and                          off."




Gordon told Justin, " I think he has had   enough,"   and Justin stopped punching Ripley. After

Justin stopped punching him, Ripley noticed that his face had swollen, his eyes had swollen shut,

he had chipped teeth, and his right leg hurt. As Gordon was driving away, Ripley called 911.

Ripley then picked up his children from daycare, drove home, cleaned himself up, took some
aspirin, and went to sleep.

        When he woke the following morning, Ripley could not put any weight on his right leg,

and he saw that his right knee had swollen. That same day, Ripley went to a clinic and was

informed that his kneecap was fractured. A few days later, Ripley saw an orthopedic surgeon,

Dr. Peter Wood. Wood performed surgery on Ripley' s knee the next day. After the surgery,

Ripley was unable to engage in any physical activity for a month apart from leaving his bed to
use the bathroom. On January 6, 2012, the State charged Gordon and Justin with second degree

 assault, alleging that each acted as a principal or as an accomplice in the assault.
        At Gordon' s and Justin' s consolidated trial, Ripley testified consistently with the facts

 above. Ripley also testified that he did not have any injury to his knee prior to the assault.

 Ripley' s wife, Valarie Ripley, testified that Ripley did not have any apparent injury when she
 had last seen him before the assault. Valarie also testified that when Ripley came home after the

 assault, he told her what had happened, cleaned himself up, took some aspirin, and went to bed.




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No. 44115 -2 -II
Consolidated with No. 44118 -7 -II




            Michael McNulty testified that he was driving a bucket loader for a landscape retail

company on November 10, 2011, when he saw three men arguing. McNulty then saw two of the

men hitting the third man while the third man was pinned against a truck. McNulty stated that he
drove his bucket loader towards the men and that the two men continued to hit the third man

until he arrived approximately 20 seconds later and told them to stop.

            Dr. Wood testified that, based on Ripley' s age and bone quality, it was likely that a

 severe      impact"   caused   his   kneecap   fracture. RP   at   223. Wood stated that the impact required to


fracture                                              to a 40[ to     60- miles       hour
                                                                                  per -
                                                                                  -          head -on   collision."   RP
             Ripley' s kneecap    was " analogous



at   223.    Wood also stated that a single, hard kick to the knee could have caused Ripley' s injury.

            Justin testified that after Gordon pulled into traffic from the gas station, Ripley sped up

behind them and honked his horn. Justin further testified that Ripley was upset, yelling, and that

Ripley gestured to Gordon to pull his car over. Justin said that after Gordon parked his car
behind Ripley' s truck, Gordon and Ripley began arguing. Justin stated that he exited the Saturn
and asked      Ripley, "[ W] hy do      you   disrespect my dad like that ?"       RP at 365. According to Justin,

Ripley then started insulting him and then Gordon exited the Saturn. Justin testified that Ripley
 exited his truck and began shouting at Gordon for a few seconds before grabbing Gordon' s

throat. Justin stated that he shoved Ripley, and then Ripley grabbed Justin' s throat. Justin

 admitted that he hit Ripley five or six times in the face, but claimed that he had acted in self -
 defense. When confronted with photographs of Ripley' s injuries, Justin admitted that he caused

 Ripley' s facial injuries. Justin testified that Gordon did not participate in the fight.



                                                               4
No. 44115 -2 -II
Consolidated with No. 44118 -7 -II




          Gordon also testified that Justin had acted in self -
                                                              defense, stating that Justin began

punching Ripley only after Ripley.had first assaulted them. Additionally, Gordon testified about

his numerous medical conditions. Gordon stated that he has herniated disks in his lower back

that   restrict   his " ability to   get aggressive   in any way," has tears in both his shoulders that restrict


his mobility, has had knee replacement surgery on his right knee, and has deterioration in his left
knee. RP      at   418.   Gordon also stated that he has to wear a colostomy bag because he had a large

portion of his digestive system removed as a result of his Crohn' s disease.

           The jury returned verdicts finding Gordon and Justin guilty of second degree assault.
Gordon and Justin timely appeal their convictions.

                                                           ANALYSIS


                                           I. SUFFICIENCY OF THE EVIDENCE


           Gordon and Justin both assert that sufficient evidence did not support their second degree

assault convictions. Specifically, they argue that the State failed to prove that either caused

Ripley " substantial bodily harm," as required in a conviction for second degree assault, because

there was no evidence that they fractured Ripley' s kneecap. We disagree.

           Sufficient evidence exists to support a conviction if any rational trier of fact could find

 the essential elements of the crime beyond a reasonable doubt when viewing the evidence in the

 light   most     favorable to the State. State       v.   Hosier, 157 Wn.2d 1, 8, 133 P. 3d 936 ( 2006). A


 defendant claiming insufficiency of the evidence admits the truth of the State' s evidence and all

 inferences that reasonably can be drawn from the evidence. State v. Salinas, 119 Wn.2d 192,
 201, 829 P. 2d 1068 ( 1992).           Circumstantial and direct evidence are equally reliable. State v.


                                                                 5
No. 44115 -2 -II
Consolidated with No. 44118 -7 -1I




Delmarter, 94 Wn.2d 634, 638, 618 P. 2d 99 ( 1980). We defer to the trier of fact on issues of


conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence. State v.

Walton, 64 Wn. App. 410, 415 -16, 824 P. 2d 533 ( 1992).

        To convict Gordon of second degree assault as charged here, the State had to prove

beyond a reasonable doubt that he


         1) intentionally assaulted Ripley and
         2) thereby recklessly inflicted substantial bodily harm

RCW 9A.36. 021( 1)( a);


        or that


         1) with knowledge that it would promote or facilitate a second degree assault, ( 2)
        he either (a) solicited, commanded, encouraged, or requested Justin to commit
        second degree assault or (b) aided or agreed to aid Justin in planning or
        committing second degree assault.

RCW 9A. 08. 020( 3)(     a).   Similarly, to convict Justin of second degree assault as charged, the

State had to prove beyond a reasonable doubt that he

         1) intentionally assaulted Ripley and
         2) thereby recklessly inflicted substantial bodily harm

RCW 9A.36. 021( 1)( a);


        or that


         1)   with   knowledge that it   would promote or   facilitate   a second   degree   assault, ( 2)

        he either (a) solicited, commanded, encouraged, or requested Gordon to commit
        second degree assault or (b) aided or agreed to aid Justin in planning or
        committing second degree assault.

 RCW 9A. 08. 020( 3)( a).




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No. 44115 -2 -II
Consolidated with No. 44118 -7 -II




             RCW 9A.04. 110( 4)( b) defines " substantial bodily harm" as " bodily injury which

involves a temporary but substantial disfigurement, or which causes a temporary but substantial

loss or impairment of the function of any bodily part or organ, or which causes a fracture of any

bodily   part."      Gordon and Justin challenge only the sufficiency of evidence in support of a jury

finding that either inflicted substantial bodily harm on Ripley.

             As an initial matter, Gordon and Justin' s sufficiency argument relies on their contention

that the jury could consider only Ripley' s fractured kneecap, and not his other injuries, in finding
that their assault on Ripley caused him substantial bodily harm. This is incorrect. In support of

this contention, Justin quotes from our opinion in State v. Beasley, in which we stated:

             When the State presents evidence of several acts that could form the basis of one
             charged count, the State must either tell the jury which act to rely on in its
             deliberations or the court must instruct the jury to agree on a specific criminal act.
             The failure to follow one of the above options violates the defendant' s State
             constitutional   right  to a unanimous jury verdict and his United States

             constitutional right to a jury trial.

 1-26 Wn.                                      849 ( 2005) ( emphasis_added)
                         670,- 682, -109 P. 3d -                                    ( citation omitted).   This is
                  App.

commonly           referred   to   as   the Petrich   rule.   2 But the Petrich rule does not apply here because this

is not a multiple acts case for which the State had to elect a single act for the jury' s

consideration, or for which the trial court had to provide a unanimity instruction. See, e.g., State

v.   Crane, 116 Wn.2d 315, 325, 804 P. 2d 10 ( 1991) ( " The Petrich rule applies only to multiple


 acts cases ( those cases where several acts are alleged, any one of which could constitute the


 2
     State   v.   Petrich, 101 Wn.2d 566, 572, 683 P. 2d 173 ( 1984),             overruled on other grounds by
 State v. Kitchen, 110 Wn.2d 403, 405 -406, 756 P. 2d 105 ( 1988).




                                                                     7
No. 44115 -2 -II
Consolidated with No. 44118 -7 -II




crime charged) ").   Rather, the State here alleged a single, continuous act of assault that resulted in


Ripley' s multiple injuries. Crane, 116 Wn.2d at 326. Accordingly, the jury could consider any

of the injuries Ripley sustained as a result of the defendants' assault in determining that the

defendants inflicted substantial bodily harm.

        Here, the State presented evidence that, as a result of Justin' s punches to his face,

Ripley' s face and eyes swelled and three of his teeth chipped. This is sufficient evidence to

support the jury finding that the assault caused Ripley substantial bodily harm. See State v.
McKague, 172 Wn.2d 802, 806, 262 P. 3d 1225 ( 2011) (            evidence of victim' s facial bruising and

lacerations   sufficient   to   show substantial   bodily injury); State v. R.H.S., 94 Wn. App. 844, 847,

974 P. 2d 1253 ( 1999) ( broken       teeth constitute substantial bodily harm).

        Additionally, the State presented sufficient circumstantial evidence to support a finding
that defendants fractured Ripley' s kneecap. The State presented evidence that Ripley did not

have any injury to his knee prior to the assault and that his right leg began to hurt immediately

following the assault. The State also presented evidence that, after the assault, Ripley picked up
his children from daycare, went home, cleaned himself off and went to bed. When Ripley woke

 the morning following the assault, his knee was swollen and he could not put any weight on it,

 and he was told that his kneecap was fractured. Ripley' s orthopedic surgeon, Dr. Wood, testified

 that a single, hard kick to the knee could have caused Ripley' s injury. Based on this evidence,

 the jury could reasonably infer that Ripley' s kneecap was fractured as a result of the assault.

 Accordingly, we hold that sufficient evidence supported Gordon and Justin' s second degree
 assault conviction.




                                                          8
No. 44115 -2 -II
Consolidated with No. 44118 -7 -II




                                    II. INEFFECTIVE ASSISTANCE OF COUNSEL


A.        Fourth Degree Assault Instruction


          Next, Gordon and Justin both assert that their respective defense counsel provided


ineffective assistance by failing to request jury instructions on the lesser included or inferior
                                                   3
degree    offense of   fourth degree    assault.        Again, we disagree.


          We review ineffective assistance of counsel claims de novo. State v. Binh Thach, 126

Wn.    App.     297, 319, 106 P. 3d 782 ( 2005).          To prevail on an ineffective assistance of counsel


claim, a defendant must show both that ( 1) counsel' s performance was deficient and ( 2) the

deficient performance prejudiced him. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.

2052, 80 L. Ed. 2d 674 ( 1984); State         v.   Brockob, 159 Wn.2d 311, 344 -45, 150 P. 3d 59 ( 2006). If


a defendant fails to establish either prong of this test, our inquiry ends and we need not consider

the other prong. State       v.   Hendrickson, 129 Wn.2d 61, 78, 917 P. 2d 563 ( 1996). " Where the


claim of ineffective assistance is based upon counsel' s failure to request a particular jury

 instruction, the defendant must show he was entitled to the instruction, counsel' s performance

 was deficient in failing to request it, and the failure to request the instruction caused prejudice."

 State   v.   Thompson, 169 Wn.      App. 436,         495, 290 P. 3d 996 ( 2012) ( citing   State v. Johnston, 143

 Wn.     App.   1, 21, 177 P. 3d 1127 ( 2007)),         review denied, 176 Wn.2d 1023 ( 2013).




 3 Gordon asserts that his defense counsel was ineffective for failing to request a lesser included
 offense jury instruction and Justin asserts that his defense counsel was ineffective for failing to
 request either a lesser included or an inferior degree offense jury instruction.


                                                                9
No. 44115 -2 -II
Consolidated with No. 44118 -7 -II




         A defendant is entitled to a lesser included offense jury instruction if ( each element of
                                                                                  1)

the lesser offense is a necessary element of the charged offense, and ( 2) the evidence supports an

inference that only the lesser crime was committed. State v. Nguyen, 165 Wn.2d 428, 434, 197

P. 3d 673 ( 2008).          And a defendant is entitled to an inferior degree offense jury instruction when:

               1) the statutes for both the charged offense and the proposed inferior degree
             offense ` proscribebut 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."




State   v.   Peterson, 133 Wn.2d 885, 891, 948 P. 2d 381 ( 1997) (                quoting State v. Foster, 91 Wn.2d

466, 472, 589 P. 2d 789 ( 1979) and State v. Daniels, 56 Wn. App. 646, 651, 784 P. 2d 579

 1990)). "[         T]he test for determining if a party is entitled to an instruction on an inferior degree

offense differs from the test for entitlement to an instruction on a lesser included offense only

with respect         to the legal    component of       the test."   State v. Fernandez -
                                                                                        Medina, 141 Wn.2d 448,


455, 6 P. 3d 1150 ( 2000).             However, the factual components of both lesser included offense test

and the inferior degree test are the same; to be entitled to either a lesser included or inferior

degree offense jury instruction, the evidence must support an inference that the defendant

committed only the lesser included or inferior degree offense. Fernandez- Medina, 141 Wn.2d at
445 -46. Because the evidence at trial did not support an inference that the defendants committed

 only fourth degree assault, they were not entitled to a fourth degree assault instructions and, thus,

 counsel were not ineffective for failing to request such instructions.

             A person is guilty of fourth degree assault if, under circumstances not amounting to first,

 second, or         third   degree   assault,   he   or she assaults another.   RCW 9A.36. 041( 1).   Here, the




                                                                     10
No. 44115 -2 -II
Consolidated with No. 44118 -7 -II




uncontroverted evidence at trial showed that Justin hit Ripley in the face several times and that, .

as a result of Justin hitting Ripley, Ripley' s face and eyes became swollen and three of his teeth

chipped. In claiming self -
                          defense, Justin admitted that he punched Ripley in the face several

times and, when confronted with photographs of Ripley' s injuries, admitted that Ripley' s facial

injuries were a result of those punches. As discussed above, Ripley' s facial injuries constituted

substantial   bodily   harm   as   defined   under   RCW 9A. 04. 110( 4)( b).   Accordingly, the evidence at

trial did not allow the jury to infer that the defendants committed an assault that did not result in

substantial bodily injury and, thus, the defendants were not entitled to fourth degree assault jury
instructions.   We hold that Gordon and Justin have not shown ineffective assistance for their

counsels' failure to request fourth degree assault jury instructions.

B.      Closing Argument

        Finally, Justin asserts that his counsel was ineffective for failing to object to Gordon' s

counsel' s closing argument, which Justin contends misstated the burden of proving self -
                                                                                        defense.
We disagree.


        During closing argument, Gordon' s defense counsel stated the following:

        Now, what we say is self -
                                 defense goes to the assault, not to what happens
        afterwards.      So if the self -
                                        defense, if you find self -
                                                                  defense, and you don' t have to
        find that beyond a reasonable doubt, because we are the ones putting self -
                                                                                  defense
        in front of you. There is actually not a standard there, but if you find self -
                                                                                      defense,
                            s [ sic] has to disprove self -
                                                          defense beyond a reasonable
        okay, then the State'
        doubt. You can' t have a doubt for which a reason exists for their use of self -
        defense.       So it puts a big burden on the State, the " no duty to retreat" puts a big
        burden on the State where it should be. Okay?




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No. 44115 -2 -II
Consolidated with No. 44118 -7 -II




                 The only issue that you guys have in front of you is who started the fight,
          because it happened so quickly, and it was only fists being used.

                        So before you get to the " to convict" jury instruction, I think it might be
           wise to first talk about whether or not an assault actually happened, because an
           assault is an unlawful, unpermitted touching. So if Phil tells me, hey, don' t touch

           me man, and I go like this, okay, then I committed the crime of assault in the
           fourth degree, because I touched him after he told me, don' t do it, man.
                        Now, if I touch Justin, he doesn' t say anything to me, and I just kind of
           touch him, it' s kind of expected that you touch people sometimes, well, then
                                      to touching. It' s kind of expected you can kind of do
           that' s not an unconsented -
           that.
                        So that'   s what an assault    is.   It' s not just a striking. It includes a striking.
           It   even    includes the    attempted strike,       but         defense negates
                                                                       self -                 the   assault.    Self -
           defense       says   that the   use   of   force   was     lawful.   So before    you    get   to the " to

           convict,"      I think you should talk about whether or not self -
                                                                            defense applies to this
           case. If self -
                         defense applies to this case, then you have to be satisfied beyond a
           reasonable doubt that it didn' t exist, and that' s a huge burden to put on the State.

RP   at   554 -55, 564 -65.        Justin asserts that this argument misstated the burden with regard to


proving     self defense
                 -              because "[   t] he jury does not have to make a finding that self -
                                                                                                  defense applies

before they determine if the State has disproved                    self defense
                                                                         -         beyond   a reasonable     doubt." Br. of


Appellant- ( ustin) - 21-.
           J        at


           Looking at Gordon' s defense counsel' s argument in context, it appears that defense

counsel was asserting to the jury that it need not consider the defendants' self -
                                                                                 defense claims if it
found that no assault had occurred. And, to the extent that defense counsel' s argument suggested


to the jury to determine whether self -
                                      defense applied before turning to the State' s burden of

 disproving self -
                 defense, we cannot conclude that such a misstatement materially affected the

trial. State       v.   Cunningham, 93 Wn.2d 823, 831, 613 P. 2d 1139 ( 1980) ( An error is harmless


  unless, within reasonable probabilities, had the error not occurred, the outcome of the trial




                                                                  12
No. 44115 -2 -II
Consolidated with No. 44118 -7 -II




would   have been materially    affected. ").   Here Gordon' s defense counsel clearly stated that the

State bore the burden of disproving self defense beyond a reasonable doubt. And the trial court' s
                                         -

self -
     defense jury instruction, which we presume the jury followed, also correctly stated that the

State had " the burden of proving beyond a reasonable doubt that the force used by the

defendant[ s]   was not   lawful." Suppl. CP at 45; State v. Costello, 59 Wn.2d 325, 332, 367 P. 2d


816 ( 1962).


        We affirm.


        A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW

2. 06. 040, it is so ordered.




We concur:




Hunt, J.




Melnick, J.




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