       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON                             ~
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 STATE OF WASHINGTON,                            )          No 73132-7-I

                          Respondent,            )          DIVISION ONE
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 EDILBERTO GUZMAN-MORALES,                       )          UNPUBLISHED
                                                 )
                          Appellant.             )          FILED: June 20, 2016



       Cox, J.   —   “[A] defendant is entitled to an instruction on self-defense if there

is some evidence demonstrating self-defense.”1 Edilberto Guzman-Morales

appeals his conviction for second-degree assault with a deadly weapon, arguing

that the court abused its discretion by refusing to instruct the jury on self-defense.

Because he failed to produce any evidence indicating that he acted in self-

defense, the court properly denied his request. We affirm.

       The State charged Guzman-Morales with second-degree assault with a

deadly weapon based on an altercation in a nightclub. At trial, a security guard

testified that he noticed an argument between Guzman-Morales and a group of

other customers. When the security guard approached him, Guzman-Morales

complained about someone spilling his beer. The guard asked Guzman-Morales

to go outside to talk to him, but Guzman-Morales refused. The guard then

offered to buy Guzman-Morales a beer and to refund his cover charge if he came


       1   State v. Werner, 170 Wn.2d 333, 336-37, 241 P.3d 410 (2010).
No. 73132-7-1/2


outside. When Guzman-Morales refused again, the security guard placed his

arm on Guzman-Morales to guide him outside. Guzman-Morales then grabbed

the guard’s shirt and told him that he would regret it.

       But Guzman-Morales nevertheless began walking towards the exit with

the guard. On their way, Guzman-Morales stopped, turned around, grabbed the

guard, and said “I’m a dangerous man, and this is going to end very badly for

you.” The guard resumed guiding Guzman-Morales to the exit.

       A few feet from the door, the guard felt a sensation in his groin like being

hit with a hot hammer. He turned and saw Guzman-Morales had a knife in his

hand. He saw Guzman-Morales moving the knife towards him again, so he

placed Guzman-Morales in a chokehold and tried to avoid the knife.

       The guard yelled “he’s got a knife” and “I have just been stabbed.” He

continued struggling with Guzman-Morales and yelling for help until another

guard hit Guzman-Morales in the face, causing him to drop the knife.

       An officer responding to the scene arrested Guzman-Morales. Guzman

Morales told the arresting officer that “he was scared because people were

hitting him.” He also mentioned being hit by a bottle.

        Guzman-Morales also testified at trial. He testified that he remembered

walking in the nightclub and being hit on the back of the head. He heard “glass

splashing” and was not sure if he had been hit with a bottle or had his beer

knocked out of his hand. After that point, he “lost it” and “blacked out.” He

further testified:

        I don’t remember much other than that until when I was in the
        police car, a few flashbacks that I get in my head from when I was


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         walking from, and I was getting choked, and the next day, I woke
         up in jail, and I didn’t know what had happened the day before, the
         night before.~2~

He later testified that he blacked out after the security guard offered to buy him a

drink.

         At trial, the State introduced security footage from the nightclub. The

footage shows the security guard escorting Guzman-Morales towards the exit.

As he does so, Guzman-Morales swings his hand towards the guard. The

security guard identified this as the moment he was stabbed. The guard then

puts Guzman-Morales in a chokehold, and the struggle moves outside the exit,

mostly out of the camera’s view.

         The footage was consistent with the guard’s description of when and

where he was stabbed. But the footage appeared to show Guzman-Morales

moving his hand towards the guard’s right hip, while the guard’s stab wound was

located on his inner right thigh.

         The State’s forensic video analyst explained that the video was taken at

an angle, and “the depth perception and the two dimensional image can be

thrown off.” Thus, the knife blade could “possibly cover that area between the

wound and where we see the hand going to.” This witness also explained that

the guard’s clothing could have changed the knife’s trajectory.

         At the close of evidence, Guzman-Morales requested a self-defense

instruction. He argued that because the security footage appeared to show



         2   Report of Proceedings (January 14, 2015) at 336-37.



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No. 73132-7-1/4


Guzman-Morales striking the guard’s hip rather than his thigh, the jury could

conclude that Guzman-Morales stabbed the guard at a different, later point in

time, when he was in a chokehold.

      The trial court declined to instruct the jury on self-defense, determining

that there was no evidence of self-defense.

      The jury found Guzman-Morales guilty as charged and the trial court

sentenced him.

       Guzman-Morales appeals.

                        SELF-DEFENSE INSTRUCTION

       Guzman-Morales argues that the trial court erred by declining to instruct

the jury on self-defense. We disagree.

      A defendant is entitled to an instruction on self-defense if some evidence

demonstrates self-defense.3 The defendant bears the initial burden of producing

some evidence that he or she acted in self-defense.4 To establish self-defense,

“‘there must be evidence that (1) the defendant subjectively feared that he was in

imminent danger of death or great bodily harm; (2) this belief was objectively

reasonable; [and] (3) the defendant exercised no greater force than was

reasonably necessary.”5




       ~ Werner, 170 Wn.2d at 336-37.

       ~ State v. Riley, 137 Wn.2d 904, 909, 976 P.2d 624 (1999).

      ~ Werner, 170 Wn.2d at 337 (quoting State v. Callahan, 87 Wn. App. 925,
929, 943 P.2d 676 (1997)).


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No. 73132-7-1/5


       “The trial court is justified in denying a request for a self-defense

instruction only where no credible evidence appears in the record to support a

defendant’s claim of self-defense.”6

       When the trial court declines to instruct the jury on self-defense based on

a lack of evidence, we review for abuse of discretion.7

       Here, the court properly denied Guzman-Morales’s request for a self-

defense instruction. No evidence suggested that he feared he was in danger of

bodily harm when he stabbed the guard. Additionally, there was no evidence

that such a belief would be reasonable, or that Guzman-Morales’s use of force

was reasonable.

       Guzman-Morales argues that his statement “that he was scared,

combined with the fact that he was choked by [the security guard], was sufficient

to raise the issue of self-defense.” This is insufficient because no evidence at

trial suggested that Guzman-Morales stabbed the guard after he was placed in a

chokehold, rather than before.

       Guzman-Morales argues that the security footage was evidence that he

stabbed the guard after being placed in a chokehold. This argument is

unpersuasive.

       The fact that the security footage does not conclusively show Guzman

Morales stabbing the guard is immaterial. This footage was not evidence



       6   State v. McCullum, 98 Wn.2d 484, 488, 656 P.2d 1064 (1983).

       ~ State v. Read, 147 Wn.2d 238, 243, 53 P.3d 26 (2002).



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suggesting that Guzman-Morales acted in self-defense. Rather it “support[ed],”

without conclusively corroborating, the guard’s testimony that Guzman-Morales

stabbed him before he was put in a chokehold. Thus, this evidence did not

create an inference that Guzman-Morales acted in self-defense.

             STATEMENT OF ADDITIONAL GROUNDS FOR REVIEW

       Guzman-Morales filed a statement of grounds for review, arguing that he

received ineffective assistance of counsel. We disagree.

       The right to counsel includes the right to effective assistance of counsel.8

One component of an ineffective assistance of counsel claim is deficient

performance.9 This requires showing that counsel’s performance fell below “an

objective standard of reasonableness.”1° Washington courts are “highly

deferential to counsel’s performance.”11 We presume that counsel provided

effective representation and require the defendant to prove that no “legitimate

strategic or tactical reasons” exist.12

       Guzman-Morales first argues that his counsel’s performance was deficient

because counsel did not sufficiently examine him on the alleged assault.



       8Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 80 L. Ed.
2d 674 (1984); State v. Crawford, 159 Wn.2d 86, 97, 147 P.3d 1288 (2006).
       ~ Strickland, 466 U.S. at 687.

            Id. at688.
       ~ In re Pers. Restraint of Gomez, 180 Wn.2d 337, 348, 325 P.3d 142
(2014).
       12   State v. McFarland, 127 Wn.2d 322, 336, 899 P.2d 1251 (1995).



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No. 73132-7-1/7


Specifically, he objects to counsel’s failure to ask him why and when he used the

knife.

         But Guzman-Morales had already testified that he had “blacked out” and

did not remember the events of the night after the moment when the security

guard offered to buy him a drink. Nothing in the record suggests that it was not a

legitimate tactical decision for counsel to choose not to ask specific questions

about events Guzman-Morales stated he could not remember. Thus, counsel’s

performance was not deficient.

         Guzman-Morales also argues that his counsel was deficient because he

failed to investigate or call a witness who was present at the alleged crime. But

the record on appeal is silent on this issue. Thus, we cannot review this issue on

direct appeal.13 “The appropriate means of raising matters outside our record is

through the filing of a personal restraint petition.”14

         We affirm the judgment and sentence.




WE CONCUR:



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         13   McFarland, 127 Wn.2d at 337-38.

         14   State v. Hart, 188 Wn. App. 453, 466, 353 P.3d 253 (2015).



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