                                                                              FILED 


                                                                         March 5, 2013 


                                                                 In the Office of the Clerk of Court 

                                                               W A State Court of Appeals, Division III 





            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                               DIVISION THREE 


STATE OF WASHINGTON,                          )
                                              )         No. 30597-0-111
                     Respondent,              )
                                              )
       v.                                     )
                                              )
MANUEL RAMIREZ,                               )         UNPUBLISHED OPINION
                                              )
                     Appellant.               )

       SIDDOWA Y, J. -   Manuel Ramirez appeals his conviction for third degree assault

of a police officer, complaining that the jury was improperly instructed as the result of

error by the court and ineffective assistance by his lawyer. We find no error and affirm.

                    FACTS AND PROCEDURAL BACKGROUND

       At approximately 10 p.m. on an evening in August 2011, Manuel Ramirez was

stopped by Maria Aceves, a security officer, as he attempted to enter the bar area of the

Andaluz Night Club in Quincy. Ms. Aceves, the lead security officer at the club that

evening, could see that Mr. Ramirez was wobbling and holding onto the wall in order to

stand up; she could smell alcohol on his breath and concluded that he was drunk. Within

about a lO-minute period, she warned him repeatedly-more than four times-that he

could not come into the bar. She was armed with oleoresin (of capsicum}-pepper
No.30597-0-III
State v. Ramirez


spray-and ultimately warned him that if he continued his attempts to enter the bar she

would spray him. He approached the bar again and she sprayed him in the face.

       Mr. Ramirez fell to the floor and began crying. Ms. Aceves attempted to handcuff

him, in order to eject him from the club. She was able to handcuff his right wrist, but he

lay on his left arm and resisted Ms. Aceves's efforts to free it. He also banged his

forehead and the side of his head on the ground during this time frame, eventually

causing injury and bleeding to his face. As this was unfolding, Ms. Aceves was speaking

to Mr. Ramirez in both Spanish and English. He responded in both languages, although

his English was broken.

       Ms. Aceves summoned two of her fellow security guards for assistance, but Mr.

Ramirez held his left arm tightly under his body and they, too, were unable to free it.

Eventually, Ms. Aceves called the Quincy police.

       OfficerJoseph Westby was the first officer to arrive. He was in uniform,

identified himself to Mr. Ramirez, and asked for Mr. Ramirez's hand. When Mr.

Ramirez did not cooperate, the officer reached for his forearm but Mr. Ramirez pulled it

more tightly beneath him. Officer Westby repeated to Mr. Ramirez three times that he

was a police officer and told him not to resist, but Mr. Ramirez would not budge. Officer

Westby then attempted to secure compliance by using a "pain compliance" technique,

pressing down on a three-nerve juncture below the jaw line on Mr. Ramirez's neck,

followed by attempting to pull Mr. Ramirez's arm out from beneath him. Report of

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No.30597-0-III
State v. Ramirez


Proceedings (Feb. 2,2012) (RP) at 47-48. It appeared this might succeed but when the

officer got close to freeing the hand from underneath Mr. Ramirez's body, Mr. Ramirez

shifted, lifted his head, and bit Officer Westby on his right inner thigh. The officer struck

Mr. Ramirez three times on his lower back in order to get him to stop biting.

         Two other Quincy police officers had arrived and the three officers, individually

or collectively, continued applying pain compliance techniques (a "gooseneck" wrist

hold, an ankle twist, striking his ribs and arm with a police baton, and kneeling on the

back of Mr. Ramirez's hamstrings) in unsuccessful efforts to secure his compliance. RP

at 71.

         Finally, the officers used a stun gun on Mr. Ramirez. On its third administration,

with the stun gun placed directly on his back, Mr. Ramirez produced his left arm. Officer

Westby immediately handcuffed him.

         By the time of arrest, Mr. Ramirez's face was covered in blood and the paramedics

had been called, so he was taken to the hospital. Officer Westby had the wound from Mr.

Ramirez's bite examined and cleaned at the same time.

         Mr. Ramirez was charged with third degree assault of a police officer.

         At trial, Mr. Ramirez testified, through an interpreter, that on arriving at the

Andaluz he paid the cover charge to someone who then disappeared, resulting in a

misunderstanding as to whether he had paid. He accused Ms. Aceves of spraying him

with pepper spray without warning based on the false accusation that he had not paid.

                                                3

No. 30597·0·111
State v. Ramirez


The pain from the pepper spray caused him to drop to the ground. There, someone

grabbed his right arm and began to handcuff him; he testified he attempted to reach his

collar with his left hand, hoping to use it to wipe the pepper spray from his face. He

claimed that at some point someone kicked him in the mouth; he tried to open his eyes to

see what was happening, but could only see his feet. He admitted that there came a point

when others arrived and he heard them use the word "police" in English, which he

understood, but he did not believe they were police officers. RP at 145.

       Mr. Ramirez attributed his biting of Officer Westby to his need to end the extreme

pain he claimed he was suffering. In direct examination, he testified that he "decided to

bite without even thinking," but when cross·examined, he testified that the bite was a

reaction "to stop this-to stop this assault. It was just a reaction, the only thing I could

think to do" and stated "I just-that was the decision I made at that time with the-being

desperate and being in anguish. Have you never been in anguish?" RP at 146-47, 157.

He denied ever banging his head on the floor or smashing his cheek or nose on the floor.

       After the close of the evidence, defense counsel proposed a self-defense

instruction, relying on the officers' testimony as to the many "pain compliance"

techniques that they applied and Mr. Ramirez's testimony that he was in anguish.

Because this was an assault against a police officer, the proposed instruction was specific

to an individual's limited right to resist detention by an officer and stated, in part:




                                               4

No. 30597-0-111
State v. Ramirez


              A person may use force to resist an arrest only if the person being
       arrested is in actual and imminent danger of serious injury from an officer's
       use of excessive force. The person may employ such force and means as a
       reasonably prudent person would use under the same or similar
       circumstances.

Clerk's Papers (CP) at 18 (based upon 11 WASHINGTON PRACTICE: WASHINGTON

PATTERN JURY INSTRUCTIONS: CRIMINAL 17.02.01 (3d ed. 2008) (WPIC)).

       The trial court heard extensive argument about the propriety ofthe instruction but

ultimately concluded that the evidence did not support giving it, explaining:

               The State is correct that the evidence must show an actual danger of
       serious injury, not a potential for injury ....
               The essence of the techniques that have been portrayed up to the
       time of the bite are techniques that are designed and intended to do
       precisely the opposite, create pain without physical injury. That would
       include everything that I can identify that was done prior to the bite. That
       includes a knee across the backs of the thighs, it includes twisting an ankle,
       it includes a gooseneck hold, it includes pulling on the arm. None of those
       things are accompanied with evidence that any of them created an actual
       danger of serious injury .
               . . . [T]he legislature has-and the courts have seen fit to throw this
       area of protection around law enforcement officers that we're not going to
       let somebody say "Ouch, that hurts and, therefore, I'm going to whack
       you." And really that's what the evidence is in this case, that Mr. Ramirez
       was experiencing pain and he lashed out because he was experiencing pain.
               The law simply doesn't countenance it but requires that-not just
       that he experience pain but that he be in actual danger of serious injury.

RP at 187-88.

       Mr. Ramirez never requested a voluntary intoxication discussion and raised no

other objection to the court's instructions.

       The jury found Mr. Ramirez gUilty. He appeals.

                                               5

No.30597-0-III
State v. Ramirez


                                        ANALYSIS

       Mr. Ramirez raises three issues on appeal: (1) the court erred in failing to instruct

the jury on the meaning of "intent," (2) his lawyer provided ineffective assistance of

counsel in failing to request an instruction defining "intent," and (3) his lawyer provided

ineffective assistance in failing to request a voluntary intoxication discussion. We

address the issues in tum.

                                              I

       Under RCW 9A.36.031(1), "[a] person is guilty of assault in the third degree ifhe

or she, under circumstances not amounting to assault in the first or second degree: ... (g)

[a]ssaults a law enforcement officer ... who was performing his or her official duties at

the time of the assault." Intent is a nonstatutory element of assault, and the jury was

instructed that "[a]n 'assault' is an intentional touching or striking of another person that

is harmful or offensive, regardless of whether any physical injury is done to the person."

CP at 24 (Instruction 4) (emphasis added); State v. Finley, 97 Wn. App. 129, 135,982

P.2d 681 (1999).

       The Washington Pattern Jury Instructions include a definition of "intent" and

"intentionally." WPIC 10.01. The instruction must be given if requested and if intent is

an element of the crime charged. Id. at 203 cmt. (citing State v. Alien, 101 Wn.2d 355,

678 P.2d 798 (1984)). Tracking the statutory definition of intent, the instruction states:




                                              6

No.30597-0-III
State v. Ramirez


              A person acts with intent or intentionally when acting with the
       objective or purpose to accomplish a result that constitutes a crime.

Id.; RCW 9A.08.010(l)(a). Mr. Ramirez did not ask the trial court to instruct the jury on

the definition of "intent" but now says it was error for the trial court to fail to provide the

instruction.

       RAP 2.5(a) states the general rule for appellate disposition of issues not raised in

the trial court: appellate courts will not entertain them. State v. Guzman Nunez, 160 Wn.

App. 150, 157,248 P.3d 103 (2011) (citing State v. Scott, 110 Wn.2d 682, 685, 757 P.2d

492 (1988)), aff'd, 174 Wn.2d 707,285 P.3d 21 (2012). Mr. Ramirez argues that this

claimed error may be raised for the first time on appeal under an exception to the general

rule provided by RAP 2.5(a)(3), which permits a party to raise initially on appeal a claim

of "manifest error affecting a constitutional right."

       To demonstrate "manifest error affecting a constitutional right," an appellant must

demonstrate (1) the error is truly of constitutional dimension and (2) the error is manifest.

State v. O'Hara, 167 Wn.2d 91,98,217 P.3d 756 (2009). Specifically, "the appellant

must 'identifY a constitutional error and show how the alleged error actually affected the

[appellant]'s rights at trial.'" Id. (alteration in original) (quoting State v. Kirkman, 159

Wn.2d 918,926-27, 155 P.3d 125 (2007)). Ifwe find that the court committed a manifest

constitutional error, it may still be subject to a harmless error analysis. Kirkman, 159

Wn.2d at 927.


                                               7

No. 30597-0-III
State v. Ramirez


       Appellate courts do not assume that an alleged error is of constitutional

magnitude. Scott, 110 Wn.2d at 687. Instead, we look to the asserted claim and assess

whether, if correct, it implicates a constitutional interest as compared to another form of

trial error. See id. at 689-91; O'Hara, 167 Wn.2d at 98.

       Mr. Ramirez's assertion of manifest error affecting a constitutional right fails at

this first step: the trial court's failure to instruct on the definition does not implicate a

constitutional interest. The failure to instruct the jury on every element of the charged

crime amounts to constitutional error. State v. Gordon, 172 Wn.2d 671,677,260 P.3d

884 (2011); O'Hara, 167 Wn.2d at 105 ("Due process requires a criminal defendant be

convicted only when every element of the charged crime is proved beyond a reasonable

doubt."). Ifthe instruction properly informs the jury of the required elements, however,

any failure to further define terms used in the elements is not an error of constitutional

magnitude. Gordon, 172 Wn.2d at 677 (quoting State v. Stearns, 119 Wn.2d 247,250,

830 P.2d 355 (1992»; O'Hara, 167 Wn.2d at 105 (quoting State v. Fowler, 114 Wn.2d

59, 69-70, 785 P.2d 808 (1990), overruled on other grounds by State v. Blair, 117 Wn.2d

479,816 P.2d 718 (1991».

       In Scott, the court was asked whether the trial court's failure to define

"knowledge" for the jury was constitutional error. 110 Wn.2d at 683-84. The court

acknowledged that State v. Tyler, 47 Wn. App. 648, 736 P.2d 1090 (1987), overruled by

State v. Delcambre, 116 Wn.2d 444, 805 P.2d 233 (1991), interpreted its decision in

                                                8

No. 30597-0-111
State v. Ramirez


Allen as having held that there is a constitutional requirement that a court define mental

states. Id. at 684. It clarified Allen as dealing only with the technical term rule: that a

party is entitled to have a technical term defined upon request. "Allen does not support

[the] contention that the failure to define a technical term in an instruction is

constitutional error that may be raised for the first time on appeal." Id. at 690; see also

O'Hara, 167 Wn.2d at 106-07 (holding that the trial court's failure to define "malice" did

not constitute error of a constitutional magnitude).

       The same reasoning by which the court has determined that a failure to define

"knowledge" and "malice" is not constitutional error applies here. Absent constitutional

error, we need not analyze whether any error was manifest or harmless. RAP 2.5(a)

applies.

                                              II

       Mr. Ramirez next argues that he received ineffective assistance because his lawyer

failed to request instructions for voluntary intoxication and a definition of "intent." We

first address his lawyer's failure to request an instruction defining "intent."

       To establish a claim for ineffective assistance of counsel, a defendant must prove

that counsel's performance was deficient and that the deficient performance prejudiced

the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d

674 (1984); State v. Nichols, 161 Wn.2d 1, 8, 162 PJd 1122 (2007). Deficient

performance is that which falls "below an objective standard of reasonableness based on

                                               9

·No. 30597-0-111
 State v. Ramirez


consideration of all the circumstances." McFarland, 127 Wn.2d at 334-35. Prejudice is

shown by demonstrating "a reasonable probability that, but for counsel's unprofessional

errors, the outcome of the proceeding would have been different." Nichols, 161 Wn.2d at

8. If a party fails to satisfy one element, a reviewing court need not consider both. State

v. Foster, 140 Wn. App. 266,273, 166 P.3d 726 (2007).

       In evaluating claims for ineffectiveness, courts are highly deferential to counsel's

decisions and there is a strong presumption that counsel performed adequately.

Strickland, 466 U.S. at 689-91. The defendant must show in the record the absence of a

legitimate strategy or tactical reason supporting the lawyer's challenged conduct. State v.

Mannering, 150 Wn.2d 277, 286, 75 P.3d 961 (2003).

       It is not enough for Mr. Ramirez to show that he was entitled to an instruction

defining "intent" if requested; to establish ineffective assistance, he must show in the

record that his lawyer had no legitimate tactical reason for forgoing the instruction. He

has not shown why his lawyer should have concluded that the technical definition would

be helpful in his case. Recall that in Allen, which established a defendant's right to an

instruction defining "intent" if requested, four of the justices would have held otherwise.

101 Wn.2d at 362-64 (Dolliver, J., dissenting). They were in the minority, of course, and

Allen made the right to the instruction, if requested, clear. But the decision illustrates that

reasonable legal minds can conclude that providing a statutory definition of "intent"




                                              10 

No.30597-0-II1
State v. Ramirez


might add nothing in a particular case. Indeed, depending on the case, a reasonable

lawyer might prefer for jurors to rely on a lay understanding of "intent."

       Similarly, Mr. Ramirez has made no attempt to demonstrate how his lawyer's

election not to request instruction on the statutory definition prejudiced him. His first

claim of ineffective assistance fails on the basis of both elements.

                                             III

       Finally, Mr. Ramirez argues that he received ineffective assistance because his

lawyer failed to request a jury instruction on the relevance, to guilt, of voluntary

intoxication.

       RCW 9A.16.090 provides that

       [n]o act committed by a person while in a state of voluntary intoxication
       shall be deemed less criminal by reason of his or her condition, but
       whenever the actual existence of any particular mental state is a necessary
       element to constitute a particular species or degree of crime, the fact of his
       or her intoxication may be taken into consideration in determining such
       mental state.

See also WPIC 18.10, cited with approval in State v. Coates, 107 Wn.2d 882, 892, 735

P.2d 64 (1987). To obtain a jury instruction on voluntary intoxication, there must be

some credible evidence that the defendant's drinking affected his ability to form the

necessary mental state to commit the charged crime. State v. Tilton, 149 Wn.2d 775, 784,

72 P.3d 735 (2003); State v. Gabryschak, 83 Wn. App. 249, 252-53, 921 P.2d 549 (1996).

Specifically, a defendant must show (1) the charged crime has a specific mental state,


                                              11 

No. 30597-0-111
State v. Ramirez


(2) there is substantial evidence the defendant was drinking, and (3) evidence that the

defendant's drinking affected his or her ability to form the required mental state.

Gabryschak, 83 Wn. App. at 252; State v. Everybodytalksabout, 145 Wn.2d 456,479, 39

PJd 294 (2002). Evidence of drinking alone is insufficient; there must be substantial

evidence of the alcohol's effects on the defendant's mind or body. Gabryschak, 83 Wn.

App. at 253.

       Third degree assault requires proof of an intentional act and there was sufficient

evidence that Mr. Ramirez had been drinking-and drinking enough to affect his ability

to form the required intent. See, e.g., State v. Walters, 162 Wn. App. 74, 83,255 P.3d

835 (2011) (evidence of defendant's slurred speech, unsteady gait, droopy and bloodshot

eyes, nonresponse to pain compliance techniques short of a stun gun sufficient to support

voluntary intoxication instruction); State v. Kruger, 116 Wn. App. 685, 692, 67 P.3d

1147 (2003 ) (evidence of defendant's blackout, vomiting, slurred speech, and

imperviousness to pepper spray supported instruction). The problem with this argument

on appeal, though, is that the evidence suggesting that Mr. Ramirez was intoxicated to the

point of impairment-evidence that he was wobbling, holding onto walls, and failing to

respond to the officers' actions and pain compliance techniques-generally came from

others and was inconsistent with Mr. Ramirez's own testimony and the defense that he

chose to present.




                                             12
No.30597-0-I11
State v. Ramirez


       Mr. Ramirez's own testimony was that he bit Officer Westby intentionally, in self-

defense. He testified that he heard the officers identity themselves as police, even ifhe

did not believe it. On cross-examination, he claimed to have consumed only four,

regular-sized bottles of beer before arriving at the Andaluz. RP at 153.

       The trial court might reasonably have concluded from Mr. Ramirez's testimony

that he was not entitled to the instruction because his ability to form the required intent

was not affected. A voluntary intoxication instruction was denied in State v. Harris, 122

Wn. App. 547,552-53, 90 P.3d 1133 (2004), for example, because the defendant

testified, notwithstanding proof that he had used crack cocaine, that he shot his victim in

self-defense.

       Equally important, Mr. Ramirez's testimony illustrates why Mr. Ramirez's lawyer

would not request an involuntary intoxication instruction: he wanted to argue self-

defense, which depended upon the jury believing that Mr. Ramirez was resisting arrest

with the force and means that a reasonably prudent person would use under the same or

similar circumstances.

       It is reasonable for a lawyer to rely only on defenses that are consistent. See

Mannering, 150 Wn.2d at 287 (counsel was not ineffective for refraining from raising a

defense that would be inconsistent with her principal defense). The fact that the trial

court ultimately refused to instruct the jury on self-defense does not demonstrate deficient

performance; the trial court carefully considered whether it should give the instruction

                                              13 

No.30597-0-II1
State v. Ramirez


before ultimately deciding that the evidence did not support it. See State v. Grier, 171

Wn.2d 17, 43, 246 P.3d 1260 (2011) (stating that whether a "strategy ultimately proved

unsuccessful is immaterial" and that "hindsight has no place in an ineffective assistance

analysis" when discussing the deficient performance prong of an ineffective assistance of

counsel claim). Notably, had the trial court given the self-defense instruction, it is the.

State that would have borne the burden of proving beyond a reasonable doubt that Mr.

Ramirez's use of force was not lawful. WPIC 17.02.01, at 257.

       Mr. Ramirez fails to demonstrate that his lawyer's performance was deficient.

       The judgment and sentence are affirmed.

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

Washington Appellate Reports but it will be filed for public record pursuant to RCW

2.06.040.



                                               SiddO~' J=­
WE CONCUR:



 orsmo, C.J.


~\Arlh&
Brown, 1.




                                             14 

