                                                                              FILED
                                                                           JULY 21, 2020
                                                                   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. 36473-9-III
                                              )
                      Respondent,             )
                                              )
       v.                                     )        UNPUBLISHED OPINION
                                              )
LISA ANN MICHAEL,                             )
                                              )
                     Appellant.               )

       PENNELL, C.J. — Lisa Michael appeals her conviction and sentence for second

degree assault. We affirm.

                                         FACTS

       Lisa Michael and an associate confronted a woman named Selena Joe over a

missing cell phone. According to Ms. Joe, the confrontation began when she was

awakened by someone hitting her in the face. A verbal dispute ensued and then things

again became physical. After receiving several blows from Ms. Michael and her

associate, Ms. Joe grabbed a large glass vase. She used it to strike Ms. Michael in the

head. Ms. Michael and her associate then gained control of the vase. Ms. Michael hit Ms.

Joe in the back of the head with the vase, causing a minor cut.

       After the fight subsided, Ms. Joe called the police. Ms. Michael was arrested and

charged with second degree assault based on her use of the vase. When the police
No. 36473-9-III
State v. Michael


interviewed Ms. Michael, she denied hitting Ms. Joe. She claimed she was the victim of

an unprovoked attack.

       The case proceeded to a jury trial. Ms. Michael testified she had little memory of

the fight, but stated she never hit Ms. Joe. She claimed to have physical ailments that

would have prevented her from starting a fight with anyone.

       Ms. Michael’s attorney challenged the State’s case by undermining Ms. Joe’s

credibility. Although the court agreed to issue a self-defense instruction, defense counsel

spent almost no time arguing self-defense. Counsel merely commented that “if Ms.

Michael punched or pushed Ms. Joe, it was in self-defense.” 1 Report of Proceedings

(RP) (Oct. 2, 2018) at 270. Counsel also made the argument that Ms. Joe “wasn’t”

engaged “in self-defense.” Id. at 273.

       The jury convicted Ms. Michael as charged. At sentencing, the court denied

Ms. Michael’s request for a downward departure and imposed a low-end sentence of

22 months’ confinement.

                                         ANALYSIS

       Ms. Michael makes two challenges to her conviction and one to her sentence; we

address each in turn.




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State v. Michael


1. Conviction challenge—sufficiency of the evidence

       Ms. Michael contends the State’s evidence was insufficient to disprove self-

defense. To succeed in this argument, Ms. Michael must demonstrate that, viewing the

evidence in the light most favorable to the State, no reasonable juror could have found

the essential elements of the crime beyond a reasonable doubt. State v. Cardenas-Flores,

189 Wn.2d 243, 265-66, 401 P.3d 19 (2017). She has not met that standard.

       Washington abides by the “long standing rule . . . that a criminal assault requires

[the use of] unlawful force.” State v. Acosta, 101 Wn.2d 612, 618, 683 P.2d 1069 (1984).

Force is lawful if deployed in self-defense. As a result, when a defendant presents some

evidence in support of a self-defense claim, the State must prove the absence of self-

defense beyond a reasonable doubt. Id. at 618-19.

       Here, the only evidence of self-defense came from Ms. Joe. According to Ms. Joe,

she was the one acting in self-defense, not Ms. Michael. Ms. Joe testified she grabbed the

vase “because [she] was scared.” 1 RP (Oct. 2, 2018) at 136. Ms. Joe explained she

believed Ms. Michael and her associate were not done with their attack, so she used the

vase to hit Ms. Michael in the face. After Ms. Joe struck Ms. Michael, Ms. Michael and

her associate wrested the vase away from Ms. Joe. Ms. Michael then hit Ms. Joe in the




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No. 36473-9-III
State v. Michael


back of the head with the vase. Ms. Michael and her associate then proceeded to hold

Ms. Joe down and hit her several more times.

       Ms. Joe’s testimony was sufficient to prove Ms. Michael was not acting in self-

defense. Based on the testimony, the jury could have reasonably believed Ms. Joe’s use of

force was a lawful means of protecting herself from Ms. Michael’s ongoing attack. In this

circumstance, Ms. Michael would have had no right of self-defense. Alternatively, the

jury could have found that Ms. Michael’s use of the vase was greater than what was

necessary under the circumstances. See State v. Walden, 131 Wn.2d 469, 474, 932 P.2d

1237 (1997). By the time Ms. Michael hit Ms. Joe with the vase, she had already taken

the vase away from Ms. Joe and thereby eliminated any risk to herself. As the incident

was recounted by Ms. Joe, there was no need for Ms. Michael to hit Ms. Joe with the vase

or to pin her down and continue the attack. The record more than adequately justifies the

jury’s guilty verdict.

2. Conviction challenge—prosecutorial misconduct

       For the first time on appeal, Ms. Michael claims the prosecutor committed

misconduct in rebuttal by making the following argument:

       The first injury doesn’t matter. If you read your instruction, it’s an assault.
       It’s that—if Lisa Michael, if you find that she struck, touched or in any
       offensive manner did any of those things to Selena Joe, it doesn’t matter if


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State v. Michael


       Selena Joe got the vase first. It just matters what happened in the beginning
       of that assault.

2 RP (Oct. 3, 2018) at 274.

       There was nothing improper in this remark, let alone an error so egregious that it

could not have been remedied by an objection and curative instruction. See State v.

Echevarria, 71 Wn. App. 595, 597, 860 P.2d 420 (1993) (“Absent a proper objection to

the comments at trial, a request for a curative instruction, or a motion for a mistrial[] . . .

[a prosecutorial] misconduct [claim is waived unless it] was so flagrant or ill-intentioned

that the prejudice could not have been obviated by a curative instruction.”). It was

appropriate for the jury to consider the entirety of the assault in assessing whether Ms. Joe

or Ms. Michael was acting in self-defense. The State’s brief remark directing them to do

so was not misconduct.

3. Sentencing challenge—denial of exceptional downward departure

       Appeals of standard range sentences are generally prohibited. RCW 9.94A.585(1).

When a defendant assigns error to a standard range sentence, appellate review turns on

whether the defendant can establish a material legal error, such as the court’s failure to

recognize discretion to impose an exceptional sentence downward. See State v.

McFarland, 189 Wn.2d 47, 56, 399 P.3d 1106 (2017).



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State v. Michael


       Ms. Michael first claims the trial court improperly denied her request for an

exceptional sentence downward based on Ms. Joe’s willing participation in the fight.

Victim wrongdoing is a viable legal basis for a departure. RCW 9.94A.535(1)(a) (An

exceptional sentence downward is permissible if, “[t]o a significant degree, the victim

was an initiator, willing participant, aggressor, or provoker of the incident.”). But here, its

application was factually unwarranted. Ms. Joe may have had credibility problems, but so

did Ms. Michael. Like the jury, the court had an ample basis to find that Ms. Joe did not

initiate the fight and was not a willing participant.

       Second, Ms. Michael argues the trial court erroneously failed to recognize its

authority to depart downward based on the minor nature of her offense. This is a

nonstatutory departure request. RCW 9.94A.535(1) (listed mitigating grounds are

“illustrative only” and not “exclusive reasons for exceptional sentences”). As such,

its validity turns on whether the circumstances proffered by Ms. Michael distinguish

her offenses from other crimes in the same category. State v. Fowler, 145 Wn.2d 400,

405, 38 P.3d 335 (2002). Ms. Michael fails to make this showing. Second degree assault

with a deadly weapon does not require a specific type of weapon or infliction of injury.

RCW 9A.36.021(1)(c). Here, Ms. Joe suffered some injury and the vase used to

perpetrate the assault could have resulted in much more serious consequences.


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State v. Michael


Ms. Michael’s offense did not fall outside the heartland of other similar crimes.

The sentencing court appropriately denied Ms. Michael’s request for an exceptional

sentence downward on this basis.

                                     CONCLUSION

       The judgment and sentence is affirmed.

       A majority of the panel has determined 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.

                                          _________________________________
                                          Pennell, C.J.

WE CONCUR:



______________________________
Korsmo, J.


______________________________
Fearing, J.




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