       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,
                                                 No. 70438-9-1
                     Respondent,                 (consolidated w/70795-7)

                                                 DIVISION ONE


JOSHUA JEEP THOMAS, a/k/a
RICHARD EUGENE PILL,                             UNPUBLISHED OPINION
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                                                                                           WCD
                     Appellant.                  FILED: June 22, 2015               <=3
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       Becker, J. — This is an appeal of a conviction for second degree assault.

Taken as a whole, the instructions did not relieve the State of its burden to
                                                                                      CO       c> t/>

disprove self-defense. But the instruction defining assault permitted the jury to     ro       CD-
                                                                                               •3-'



convict the defendant of a felony based on facts that would prove only

misdemeanors. The misleading instruction was proposed by defense counsel.

We conclude appellant is entitled to a new trial due to ineffective assistance of

counsel.

       Appellant Joshua Thomas, a man in his sixties, lives in a rural part of

southern Whatcom County near Camp 2 Road, a hard-pack road covered by

loose gravel. Camp 2 Road is not maintained by the county. Thomas and other

adjacent property owners are responsible for its upkeep. Speeders have caused

recurring problems for the residents because they tear up the road.
No. 70438-9-1/2


       On July 19, 2011, a 15-year-old boy, JC, was heard by neighbors

speeding with his motorcycle up and down Camp 2 Road. Thomas came out to

the road and confronted him. JC sped off up a logging road but returned a short

time later. He was again confronted by Thomas, who pulled out a gun and

started cursing. According to JC, Thomas pointed the gun at his head. The

State charged Thomas with second degree assault in violation of RCW

9A.36.021(1)(c), assault with a deadly weapon.

       A trial was held in April 2013. JC testified about what happened when he

rode back down to where he first encountered Thomas:


       And when I got close enough, he came out of the bushes holding a
       gun out to me saying stop. So my bike died, and I restarted it and
       tried to turn around. By that time, he was right next to me and then
       pulled me off my bike and held a gun to my head and started yelling
       at me.


JC testified that Thomas cocked his gun and said, '"don't move or I'll shoot you,

you little bastard,'" while pulling him off the motorcycle. Then Thomas "let go of

me and told me to leave. He uncocked his gun, and then I went, picked up my

bike and started it and left."


       According to Thomas, he held the gun in the air but never pointed the gun

at JC. Thomas testified that he was annoyed when he heard the sound of a

motorcycle exhaust system that day and he decided to try to contact the rider.

Thomas testified that when he was about 15 feet away, the rider gave him the

"one-finger salute," gunned his engine, and spun out, causing gravel to fly up and

hit Thomas. The rider came back a few minutes later, still traveling at high

speed. The rider then stopped abruptly about 40 feet away, hunkered down, and
No. 70438-9-1/3


revved his engine. Thomas said he was afraid the rider was about to charge at

him, so he walked toward the motorcycle to give the rider less room to gain

speed. Thomas said he pulled out a small pistol and pointed it upwards so the

rider would see it and stand down. He testified that he put his left hand on the

rider's shoulder, glared at him, and told him to slow down because speeding

damages the road.

      The jury convicted Thomas of second degree assault and returned a

special verdict finding that Thomas was armed with a firearm.

      Thomas moved for a new trial through new counsel. He argued that trial

counsel was ineffective for proposing a misleading definition of assault that

became instruction 11. The trial court denied the motion. Thomas appeals.

      Where instructional error is the result of alleged ineffective assistance of

counsel, the doctrine of invited error does not preclude review. State v. Kvllo.

166 Wn.2d 856, 861, 215 P.3d 177 (2009). A claim of ineffective assistance of

counsel is reviewed on appeal de novo. State v. Sutherbv, 165 Wn.2d 870, 883,

204 P.3d 916 (2009).

       To establish ineffective assistance of counsel, Thomas 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). Thomas must overcome a strong presumption

that his counsel's representation was adequate and effective. State v.

McFarland. 127 Wn.2d 322, 335, 899 P.2d 1251 (1995). And to show prejudice,

he must establish "there is a reasonable probability that, except for counsel's
No. 70438-9-1/4



unprofessional errors, the result of the proceeding would have been different."

McFarland. 127 Wn.2d at 335.

       The State built its case around instruction 13, the to-convict instruction for

second degree assault:

       To convict the defendant of the crime of assault in the second
       degree, each of the following elements of the crime must be proved
       beyond a reasonable doubt.

       (1) That on or about 19th day of July, 2011, the defendant assaulted
       [JC] with a deadly weapon; and

       (2) That this act occurred in the State of Washington.

       If you find from the evidence that each of these elements have
       been proved beyond a reasonable doubt, then it will be your duty to
       return a verdict of guilty.

       On the other hand, if, after weighing all the evidence, you have a
       reasonable doubt as to any of these elements, then it will be your
       duty to return a verdict of not guilty.

                         TWO DEFINITIONS OF ASSAULT

       The State's theory of second degree assault depended on the jury finding

that Thomas pointed the gun at JC to frighten him.

       The defense theory was twofold: Thomas either acted in self-defense or,

at most, committed the misdemeanors of fourth degree assault and unlawful

display of a weapon. The defense theory of fourth degree assault depended on

the jury finding that Thomas laid his hand on JC's shoulder while he held the gun.

       Because of the two different theories about what conduct may have

amounted to an assault, the court accepted defense counsel's proposal to give

the jury two different definitions of "assault." Both definitions were included in

instruction 11:
No. 70438-9-1/5


                           INSTRUCTION NO. 11
              An assault is an intentional touching of another person, with
       unlawful force that is harmful or offensive regardless of whether any
       physical injury is done to the person. A touching is offensive if the
       touching would offend an ordinary person who is not unduly
       sensitive.
              An assault is also an act 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
       bodily injury.
              An act is not an assault, if it is done with the consent of the
       person alleged to be assaulted.

       Trial counsel for Thomas testified in support of the motion for a new trial.

He explained that he drafted the instruction to give the jurors the option of a

misdemeanor conviction if they did not believe Thomas actually pointed the gun:

       I believed if the jury found Mr. Thomas pointed the gun, he would
       be guilty of assault 2°. However, if it did not believe he pointed the
       gun, but only that he displayed or brandished the gun, he was guilty
       only of unlawful display of a weapon. It would be possible for the
       jury also to find assault 4° based on an impermissible touching by
       putting his hand on [JC]'s shoulder.

       Thomas claims that in the unique circumstances of this case, combining

the two definitions of assault in a single instruction rendered the instruction

misleading. Jury instructions are proper when they permit the parties to argue

their theories of the case, do not mislead the jury, and properly inform the jury of

the applicable law. State v. Barnes. 153 Wn.2d 378, 382, 103 P.3d 1219 (2005).

       The first paragraph of instruction 11, defining assault as an offensive

intentional touching, reflected the defense theory. The second paragraph,

defining assault as an act that is intended to and does in fact cause fear of bodily

injury, reflected the State's theory. While both were correct definitions of assault,

instruction 11 did not explain which definition was meant to go with which theory.
No. 70438-9-1/6


As a result, Thomas argues, the jury was allowed to rely on the first paragraph's

definition of fourth degree assault to determine the meaning of "assault" as used

in instruction 13, the to-convict instruction for second degree assault.

       When Thomas made this argument at the hearing on the motion for a

new trial, the trial court denied the motion in part because it was only speculation

that the jurors might have applied instruction 11 incorrectly. Thomas moved for

reconsideration supported by declarations from two jurors. One of the declarants

said the guilty verdict was decided based on the law on "showing a firearm in a

way to create fear in an individual,"1 along with the fact that Thomas grabbed JC

by the shoulder. This declarant said he did not believe JC's testimony about the

gun being held to his head. The other declarant said the jurors felt the gun was

used "to intimidate" JC and put him in fear "even if it wasn't pointed at him." This

declarant said that for him, the act of assault was a combination of "the fact that

Mr. Thomas showed the kid a loaded revolver as he approached and also

attempted to jerk him off the bike and that he touched his shoulder."

       The State correctly points out that the jurors' deliberations inhere in the

verdict and their declarations may not be used to impeach the verdict. State v.

Forsyth. 13 Wn. App. 133, 138, 533 P.2d 847 (1975). But Thomas did not offer

the declarations to impeach the verdict. He offered them "to illustrate" how the

two definitions could be misleading. The trial court agreed that its previous ruling




       1 Instruction 22 stated as follows: "A person commits the crime of
unlawfully displaying a weapon when he or she carries, exhibits, displays or
draws a firearm in a manner, under circumstances, and at a time or place that
warrants alarm for the safety of other persons."
                                          6
No. 70438-9-1/7


"invited you to bring affidavits, and you've done that." Like the trial court, we

have considered the declarations not as evidence of the deliberations but to

illustrate the problem with instruction 11.

       Instruction 13 states that second degree assault is assault "with a deadly

weapon." The first paragraph of instruction 11 states that "an assault is an

intentional touching of another person, with unlawful force that is harmful or

offensive regardless of whether any physical injury is done to the person." It was

undisputed that Thomas, while holding a firearm, took hold of JC's shoulder. The

primary fact in dispute was whether he pointed the gun at JC. Using the

definition in the first paragraph, a juror could find that Thomas committed an

"assault" of JC by grabbing his shoulder and could then conclude that the assault

was "with a deadly weapon" because Thomas was holding his gun at the time. A

juror reasoning in this fashion would not need to resolve the dispute about

whether the gun was pointed at JC. The facts a juror found to support such

reasoning would constitute fourth degree assault, or possibly fourth degree

assault and unlawful display of a weapon—both of which are misdemeanors.

       We therefore agree with Thomas that instruction 11 was misleading and

trial counsel performed deficiently by offering it. Given the two definitions of

assault, a juror may have understood that Thomas was guilty of committing

"assault" with a deadly weapon, even if the juror did not find that Thomas

intended to put JC in fear and apprehension that he was about to be shot.

See State v. Bvrd. 125 Wn.2d 707, 713-14, 887 P.2d 396 (1995).
No. 70438-9-1/8


       The State contends the special verdict demonstrates that the jurors did not

predicate their finding of assault on conduct constituting unlawful display of a

weapon. But the special verdict only establishes that when Thomas assaulted

JC, he was armed with a firearm. It does not demonstrate that the assault he

committed was by pointing the firearm at JC or otherwise intentionally putting him

in fear of bodily injury.

       We conclude there is a reasonable possibility that the outcome of the trial

would have been different if counsel had drafted instruction 11 in a way that

restricted the offensive touching definition of assault to the misdemeanor charge

of fourth degree assault.

                                 SELF-DEFENSE

       Once the issue of self-defense is properly raised, the absence of self-

defense "becomes another element of the offense which the State must prove

beyond a reasonable doubt." State v. McCullum. 98 Wn.2d 484, 493-94, 656

P.2d 1064(1983).

       Jury instructions on self-defense must more than adequately convey the

law. Read as a whole, the jury instructions must make the relevant legal

standard manifestly apparent to the average juror. Kvllo, 166 Wn.2d at 864.

"The jury should be informed in some unambiguous way that the State must

prove absence of self-defense beyond a reasonable doubt." State v. Acosta. 101

Wn.2d 612, 621-22, 683 P.2d 1069 (1984).

       Thomas contends the instructions taken as a whole failed to meet these

standards in two ways: first, because instruction 13, the to-convict instruction,



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No. 70438-9-1/9


did not set forth the State's obligation to prove the absence of self-defense along

with the other elements of second degree assault; and second, because the

phrase "with unlawful force" was included in one definition of assault in

instruction 11 but not the other.

1. State's Burden To Disprove Self-Defense

       The to-convict instruction for the charge of second degree assault was

instruction 13, quoted above. It stated there were two elements of the crime that

had to be proved beyond a reasonable doubt: that the defendant assaulted JC

with a deadly weapon on the date in question and that the act occurred in

Washington. It further stated, "If you find from the evidence that each of these

elements have been proved beyond a reasonable doubt, then it will be your duty

to return a verdict of guilty."

       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). Thomas

contends that under this rule, the State's burden to disprove self-defense belongs

in the to-convict instruction. He argues that omitting any reference to this burden

in instruction 13 unconstitutionally relieved the State of its burden to prove every

element of second degree assault. The prejudicial nature of the omission,

Thomas argues, was demonstrated in closing argument when the prosecutor

used instruction 13 to assert that there were "only two elements" on which the

State had the burden of proof: "We have the burden here, and we have to prove

what is enumerated as two different elements, only two elements." The
No. 70438-9-1/10


prosecutor was able to track instruction 13 in argument without acknowledging

the State's burden of disproving the absence of self-defense. In discussing the

claim of self-defense, the prosecutor simply argued that Thomas used more force

than was necessary.

       Thomas did not object to instruction 13 below, and his motion for a new

trial did not allege that trial counsel was ineffective for failing to object to it. We

determine on a case-by-case basis whether an unpreserved claim of error

regarding a self-defense jury instruction constitutes a manifest constitutional error

that can be raised for the first time on appeal. State v. Q'Hara. 167 Wn.2d 91,

101, 217 P.3d 756 (2009) (as amended by order dated Jan. 21, 2010).

       Including the State's burden to disprove self-defense in the to-convict

instruction may well be a preferred practice. On its face, instruction 13 imposed

upon the jury a duty to render a verdict of guilty if the State proved an assault

with a deadly weapon occurred in Washington. Because there was a claim of

self-defense, instruction 13 standing alone would likely constitute manifest

constitutional error. See Acosta. 101 Wn.2d at 615 (reversible error where no

instruction informed the jury whether petitioner or the State bore the burden of

proving or disproving self-defense).

       But instruction 13 did not stand alone. If a separate instruction is used to

state the State's obligation to prove the absence of self-defense, omitting similar

language from the to-convict instruction is not reversible error. State v. Hoffman.

116 Wn.2d 51, 109, 804 P.2d 577 (1991). In this case, the court did give a




                                           10
No. 70438-9-1/11


separate instruction, instruction 14, modeled on Washington Pattern Jury

Instructions: Criminal § 17.02 (2008) (WPIC).

             It is a defense to a charge of Assault in the Second Degree,
       Assault in the Fourth Degree and Unlawful Display of a Weapon
       that the force offered to be used was lawful as defined in this
       instruction.
              The offer to use force upon or toward the person of another
       is lawful when offered by a person who reasonably believes that he
       is about to be injured in preventing or attempting to prevent an
       offense against the person, and when the force is not more than is
       necessary.

              The State has the burden of proving beyond a reasonable
       doubt that the force offered to be used by the defendant was not
       lawful. If you find that the State has not proved the absence of this
       defense beyond a reasonable doubt, it will be your duty to return a
       verdict of not guilty.

Instruction 14 informed the jury that the State had the burden of proving the

absence of self-defense beyond a reasonable doubt. It also instructed the jury to

return a verdict of not guilty if the State did not meet that burden.

       In view of instruction 14's correct statement of the State's burden to prove

the absence of self-defense, we conclude Thomas has not shown manifest

constitutional error in the omission of the same language from instruction 13.

2. "With Unlawful Force" Omitted

       One of the definitions of assault in instruction 11 did not include the

phrase "with unlawful force." Thomas contends this phrase was necessary to

adequately state the law of self-defense. Thomas preserved this argument for

appeal by including it in the claim of ineffective assistance of counsel raised

below in the motion for a new trial.




                                          11
No. 70438-9-1/12


       A person acting in self-defense acts lawfully. Acosta. 101 Wn.2d at 617.

Accordingly, when there is a claim of self-defense in an assault case, the

definition of "assault" should include the requirement that it be committed with

unlawful force. 11 Washington Practice: Washington Pattern Jury


Instructions: Criminal 35.50 note on use at 164-65 (3d ed. Supp. 2014).

       Here, the first paragraph of instruction 11 defines assault as an intentional

offensive touching "with unlawful force." However, the second paragraph,

defining assault as an act intended to create fear of bodily injury, does not say

that the act must be done "with unlawful force."

       At the hearing on the motion for a new trial, Thomas' former defense

counsel admitted that when preparing instruction 11, he did not review the notes

following WPIC 35.50 or case law. He testified that he had no strategic reason

for putting the phrase "with unlawful force" in the first paragraph but not in the

second.


       The State conceded, and the court agreed, that defense counsel should

have included the phrase "with unlawful force" in both paragraphs of instruction

11. But the court also agreed with the State's argument that the omission did not

warrant a new trial. With respect to both the charge of second degree assault

and the lesser degree crimes, instruction 14 stated, "The State has the burden of

proving beyond a reasonable doubt that the force offered to be used by the

defendant was not lawful." The trial court concluded this statement sufficiently

informed the jury that the State did not prove Thomas committed an act




                                          12
No. 70438-9-1/13


amounting to second degree assault unless it proved that he acted with unlawful

force.


         Thomas disagrees with the trial court's determination that instruction 14

solved the problem. He contends the phrase "with lawful force" must be included

in an instruction defining assault in order to lead the jury to the definition of lawful

force found in the instruction on self-defense—which in this case was instruction

14. WPIC 35.50 cmt. at 167 (Unlawful use of force) ("ifthere is a claim of self

defense or other lawful use of force, the instruction on that defense will define the

term 'lawful'").

         The inclusion of the phrase "with unlawful force" in one definition of

assault but not the other does have the potential to be confusing and misleading

when looked at in isolation from the other instructions. It is also problematic that

the phrase was omitted from the very definition of assault the State was relying

on to obtain the conviction. Nevertheless, instructions must be read as a whole.

State v. Hutchinson. 135 Wn.2d 863, 885, 959 P.2d 1061 (1998). cert, denied.

525 U.S. 1157 (1999). We agree with the trial court that instruction 14

adequately conveyed to the jury that Thomas could not be found guilty of any

crime unless the State proved he acted with unlawful force.

         In summary, Thomas is entitled to a new trial due to ineffective assistance

of counsel. Our confidence in the result of the trial is undermined by the

misleading nature of the definitions of assault contained in instruction 11, though




                                           13
No. 70438-9-1/14


not by the irregularities in conveying the State's burden to prove absence of self-

defense.2

       Reversed.




                                         ^cl<^<
WE CONCUR:




 ^ntf/r^^CCS,




       2 A short statement of additional grounds for review submitted by Thomas
under RAP 10.10 does not provide any other viable basis for appellate scrutiny of
the proceedings below.
                                         14
