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    IN THE COURT OF APPEALS OF THE STATE OF WASHIN                                                          ON                       8 4I
                                                                                                       T

                                              DIVISION II
                                                                                                            TEII'1=     ASH! NG.TQd

 STATE OF WASHINGTON,                                                       No. 45133 -6 -II


                                    Respondent,


          v.



 MICHAEL JOSEPH SMITH,                                                UNPUBLISHED OPINION


                                    Appellant.


         SUTTON, J. — Michael Joseph Smith appeals his convictions for second degree assault and


third degree assault of a    police officer.     He argues that the trial court violated his Fourteenth


Amendment due process right when it denied his request for a jury instruction on self defense
                                                                                      -

against a police officer acting within the scope of his duties. Because Smith presented insufficient

evidence that he was in actual and imminent danger of serious injury, the trial court did not abuse

its discretion by denying Smith' s self -defense instruction. Accordingly, we affirm.

                                                   FACTS


         On April 21, 2013, a Clark County deputy sheriff was patrolling Highway 99 in Vancouver

in a marked police car and wearing a standard uniform. During his patrol, the deputy saw Smith

at the intersection of Highway 99 and 107th Street, waiting for the light to turn in his favor at a

crosswalk. The deputy' s light was green, meaning that Smith' s traffic signal for crossing was red.

Smith jogged across the roadway in front of the deputy while the deputy' s light was green, and

headed to a nearby convenience store.

         The   deputy   proceeded   to the store to contact Smith about     his   jaywalking. As the deputy

pulled   into the parking lot, Smith   was   nearing the door; the   deputy used his   air   horn to   get    Smith'        s
No. 45133 -6 -II



attention and signaled        him    over    to the patrol car.              After blowing the horn, Smith looked at the

deputy,   who said "    Come here"         and motioned with              his hands for Smith to        approach     the   vehicle.   1


Verbatim Report        of   Proceedings ( VRP)            at   61.    Smith disregarded the command and walked into


the store.



          The deputy followed Smith into the store and instructed him to step outside to talk about

his jaywalking. Smith         responded, "        I don' t think      so."    1 VRP at 63. The deputy approached Smith,

said "   Come   on,"   and motioned         for Smith to follow him              outside.   1 VRP       at   63.   When the deputy

approached within three or four feet, Smith turned to face him and put up his balled -up fists. The

deputy responded by reaching between Smith' s hands, grabbing his jacket, and running him

towards the back       of   the   store   to "   try[]   to   trip him down      and get    him   off   balance."     1 VRP at 65.


Once the deputy took Smith down to a seated position, he reached out to grab Smith' s left hand to

roll him over and handcuff him. Smith then punched the deputy in the mouth, which required the

deputy to get stitches to repair his split lip.

          The State charged Smith with second degree assault, RCW 9A.36. 021, and third degree


assault, RCW 9A.36. 031. 1 At trial, the State' s witnesses testified consistent with the above stated

facts.   Smith testified that he did not leave the store at the deputy' s request because he does not

trust cops, and did not want to be away from the security camera and the witness in the store. He

stated   that he felt " threatened" only            when       the   deputy   began moving towards him. 1 VRP at 141.


He also admitted that he was already in a defensive stance when the deputy moved toward him,



1
    The legislature    amended     RCW 9A.36. 031 in 2013. LAWS                    OF 2013, ch.    256, § 1. The amendments

did not alter the statute in any way relevant to this case; accordingly, we cite the current version
of the statute.




                                                                      2
No. 45133 -6 -II



that he        punched      the   deputy    because he felt that the             deputy   was "   violating" his "   rights,"   and "[    t] o


get [    the   deputy]      to   let   go of [him]."      1 VRP at 141, 143.


               Smith proposed a self -defense jury instruction based on 11 Washington Criminal Pattern

Jury Instruction: Criminal                   17. 02. 01    at   253 ( 3d   ed.   2008), which provides that it is a defense to


the charge of assault if the defendant used lawful force when resisting arrest.2 The trial court

rejected Smith' s proposed instruction because he had not presented sufficient evidence that he was


in fear    of "actual and              imminent   serious       injury" by      a police officer' s use of "excessive           force."     2


VRP at 191. The jury convicted Smith of second degree and third degree assault. As to the second

degree assault conviction, the jury found by special verdict that Smith committed the crime

 against a        law   enforcement o ffi c e r who was              performing his ...           official duties at the time of the


crime" and         that Smith " kn[ e]       w   the   victim was a        law   enforcement officer."       Clerk' s Papers ( CP) at


100.


               The jury' s special verdict finding permitted the trial court to enter an exceptional sentence

of   1   year and       1    day       of confinement,      followed       by    18 months        of   community custody.         During



2 Smith' s proposed self -defense instruction stated as follows:
                        It is a defense to the charges of Assault in the Second Degree and Assault
               in the Third Degree that force used was lawful as defined in this instruction.
                      A person may use force to resist an arrest by someone known by the person
               to be a police officer 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.

                      The State has the burden of proving beyond a reasonable doubt that the force
               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.
Clerk' s Papers at 30.
No. 45133 -6 -II




sentencing, the trial court merged Smith' s third, degree assault conviction into his second degree

assault conviction. Smith appeals his judgment and sentence.


                                                          ANALYSIS


         Smith argues that the trial court erred when it declined to give his self -defense instruction


because the evidence at trial supported giving it. We conclude that the trial court did not abuse its

discretion in denying Smith' s self -defense instruction.

                                                   I. Standard of Review


         Our standard of review when the trial court has refused to instruct the jury on self defense
                                                                                              -

depends on why the court refused the instruction. State v. Read, 147 Wn.2d 238, 243, 53 P. 3d 26

 2002). We       review   for   abuse of   discretion     a   trial   court' s refusal "`   to give a self -defense instruction


because it found no evidence supporting the defendant' s subjective belief of imminent danger of

great   bodily   harm.'         State v. George, 161 Wn. App. 86, 94, 249 P. 3d 202 ( quoting Read, 147

Wn.2d    at   243), review denied, 172 Wn.2d 1007 ( 2011).


                                       II. Self Defense
                                                -       Involving a Police Officer

         When a defendant claims self -defense for using force against a law enforcement officer,

the general self -defense rule does not apply. State v. Calvin, 176 Wn. App. .1, 14, 316 P. 3d 496

 2013) (   setting forth the general test for self -defense that generally it " is justified if there is an

appearance of      imminent danger ");        see also State v. Bradley, 141 Wn.2d 731, 737, 10 P. 3d 358

 2000); RCW 9A. 16. 020( 3).          The use of force in self -defense against an arresting law enforcement

officer is permissible only when the arrestee actually faces an imminent danger of serious injury

or   death.    Calvin, 176 Wn.        App.    at    14;   Bradley,        141 Wn.2d     at    737.   As our Supreme Court


explained, "` [   o] rderly and safe law enforcement demands that an. arrestee not resist a lawful arrest



                                                                      4
No. 45133 -6 -II



    unless    the   arrestee   is actually         about     to be seriously injured or killed. '              Bradley, 141 Wn.2d at

738 ( quoting State      v.    oleman, 103 Wn.2d 426, 430, 693 P. 2d 89 ( 1985)).
                              I&                                                                                  Our Supreme Court


explained the policy rationale for this rule:

           T] he arrestee' s right to freedom from arrest without excessive force that falls
        short of causing serious injury or death can be protected and vindicated through
        legal processes, whereas loss of life or serious physical injury cannot be repaired in
        the    courtroom.            However, in the                vastmajority of cases            . . .     resistance      and

        intervention      make matters              worse, not        better. They create
                                                                     violence where none
        would have otherwise existed or encourage further violence, resulting in a situation
        of arrest by combat."

Holeman, 103 Wn.2d             at   430 ( alteration in         original) (   quoting State v. Westlund, 13 Wn. App. 460,

467, 536 P. 2d 20 ( 1975)).


        The same standard for self defense
                                   -       against a police officer established in Holeman and


Westlund applies to the third degree                             assault of a police officer charged under RCW

9A.36. 031( 1)( g).     State       v.   Ross, 71 Wn.         App. 837,      840, 863 P. 2d 102 ( 1993).             In a case such as


this, a jury is properly instructed that the use of force upon or toward a law enforcement officer "is

only lawful    when ...        used       by   a person who          is actually   about     to   be seriously injured." Ross, 71


Wn. App. at 840 ( internal quotation marks omitted).

         Smith asserts that the evidence was sufficient to give his self -defense instruction because


he testified at trial that " he felt threatened by the deputy and that he was afraid that the deputy

might   hit him." Br.     of    Appellant          at   5.   But his testimony goes to the appearance of danger, or his

perception of       the danger,      not   the     existence of actual        danger. Calvin, 176 Wn.              App.   at   14.   Smith


testified, "[ the   deputy]    started      moving towards           me.    I felt it   seemed a    little   aggressive. [   The deputy]

grabbed me     by the   shirt and         lifted   me    up   and   looked   at   my    eyes[.    H] e was just looking in my eyes.

I felt threatened."      1 VRP at 140. And Smith failed to testify that he " face[ d] an imminent danger


                                                                        5
No. 45133 -6 -II



of serious    injury   or   death ";   his vague statements about feeling threatened fall far short of this

standard. Calvin, 176 Wn. App. at 14.

        Under Calvin, this evidence is insufficient. Accordingly, the trial court did not abuse its

discretion in concluding that the          evidence was   insufficient to   support   Smith' s "` subjective belief


of   imminent danger        of great   bodily harm.'      George, 161 Wn. App. at 94 ( quoting Read, 147

Wn.2d   at   243).   We hold that the trial court did not abuse its discretion in denying Smith' s request

for the self -defense instruction.


        Accordingly, we affirm Smith' s convictions and sentence.

        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:




 ihanson, C. J.




 t‘4114
Maxa, J.




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