                                                                           FILED
                                                                        JUNE 11, 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. 37355-0-III
                     Respondent,              )
                                              )
       v.                                     )
                                              )         UNPUBLISHED OPINION
MARGO RENEE THOMAS,                           )
                                              )
                     Appellant.               )

       FEARING, J. — Margo Thomas appeals her conviction for assaulting her sister with

a wine bottle. She assigns error based on an insufficiency of evidence, a first aggressor

jury instruction, ineffective assistance of counsel, and exclusion of some of her expert’s

opinions. We reject her challenges and affirm her conviction for second degree assault.

                                          FACTS

       This prosecution arises from a dispute and altercation between Margo Thomas and

her older sister, Sandra Langham, a denizen of picturesque Port Townsend. Before

December 9, 2017, the date of the alleged crime, the two sisters visited sparingly.
No. 37355-0-III
State v. Thomas


      On December 8, 2017, Margo Thomas traveled to Port Townsend to visit Sandra

Langham and shop for Christmas presents. The sisters shopped and ate lunch in Poulsbo

before heading to Langham’s home where Thomas stayed the night. The following day,

the sisters shopped at the Saturday market in downtown Port Townsend. After shopping

into the late afternoon, the two ate an early dinner. Langham drank a Kamikaze cocktail

with her meal. Thomas imbibed three shots of whiskey.

      The sisters perused more shops after dinner before stopping at a grocery store.

Sandra Langham purchased a bottle of wine, and Margo Thomas bought whiskey. At 6

p.m., the two returned to Langham’s home for the evening. They opened the wine, and

Langham built a fire in the wood burning stove. Langham enjoyed two glasses of wine,

and Thomas had one. Langham opened a second bottle of wine and left it on the kitchen

counter. Thomas opened her whiskey and poured herself a stemmed wine glass full of

the malt. The sisters conversed and eventually ventured into the inevitable “past family

stuff.” Report of Proceedings (RP) at 530. Thomas expressed to Langham that she felt

unsupported by her during Thomas’ divorce many years earlier. Langham asked Thomas

to leave the house because of the mean things Thomas bespoke. The interaction turned

physical.

      The sisters’ versions of events differ concerning their row. According to Sandra

Langham, the two yelled and shoved each other. They ended up on the kitchen floor

before Margo Thomas struck Langham in the face with a wine bottle, thereby knocking

                                            2
No. 37355-0-III
State v. Thomas


Langham unconscious. When Langham regained consciousness, she awoke with Thomas

sitting on top of her. Thomas screamed expletives and hit Langham again. Langham

asked her to stop before being knocked unconscious a second time. When she

reawakened, Thomas was gone, and Langham’s eye was swollen shut. Langham ambled

to her neighbor’s house for help. Langham was transported to the hospital where, after a

CT scan, doctors diagnosed her with an orbital floor fracture. Langham testified at trial

to a blurry memory of the altercation, but that she remembers Thomas smashing the wine

bottle against her face.

       According to Margo Thomas, after Sandra Langham asked Thomas to leave the

house, Langham pushed her into the wood stove. Thomas’ head struck the stove, and

Thomas fell to the ground. The sisters brawled, and Langham repeatedly knocked

Thomas down:

              [DEFENSE COUNSEL]: And what would happen when you’d get
       knocked down?
              [THOMAS]: Well, the last time that she did it, we were in the
       kitchen area. And she, I had gotten up. I mean, we had knocked bottles
       over and glasses. It was a mess in there. And then she came at me in the
       kitchen and put her hands around my throat.
              [DEFENSE COUNSEL]: What did you do when she did that?
              [THOMAS]: I couldn’t breathe. I was quite frightened.
              [DEFENSE COUNSEL]: What happened next?
              [THOMAS]: I don’t know.
              [DEFENSE COUNSEL]: Did you lose consciousness?
              [THOMAS]: I did.

RP at 532-33.


                                             3
No. 37355-0-III
State v. Thomas


       According to Margo Thomas, Sandra Langham struck her in the head with a fire

poker from the wood stove. The blow caused an indent in Thomas’ head. Thomas

testified that “[t]he entire night goes in and out,” and that she has visions of being pushed

and strangled by Langham. RP at 552.

       At 8:00 p.m. on December 9, 2017, Sandra Langham’s neighbor, Jeffrey Johnson,

heard a loud crash, screaming, and a thud. Johnson stepped outside to investigate, but

saw no emergency. Seconds after reentering his house, a bleeding Langham knelt at his

glass front door. Johnson brought Langham inside, applied pressure to her head wound

with clean towels, and called law enforcement. Soon after, Johnson spied Margo Thomas

stumbling across the driveway with a white pillow under her arm. Johnson left his house

and approached Thomas. As Johnson ran to Thomas’ vehicle, he smelled a strong odor

of alcohol on Thomas. Because he believed that Thomas had beaten Langham, Johnson

pressed his body against the car door to preclude Thomas from closing the door and

escaping the neighborhood. After Johnson ordered Thomas to sit on the ground, she

rushed Johnson and started to push him. Johnson knocked her to the ground and had her

sit until officers arrived fifteen minutes later.

       Jefferson County Sheriff Deputy Brandon Przygocki responded to Jeffrey

Johnson’s call for police assistance. Deputy Przygocki observed no injuries on Margo

Thomas other than some blood on her right ring finger. Przygocki also noticed blood on

Thomas’ jacket and hat, but did not seize the clothing as evidence. According to Deputy

                                                4
No. 37355-0-III
State v. Thomas


Przygocki, Thomas was “extremely” under the influence of alcohol. Thomas never told

him that she was injured in the fight or that she had been strangled by her sister. Instead,

Thomas told Przygocki that Sandra Langham injured herself and has “mental health

issues.” RP at 400. Deputy Przygocki also spoke to Sandra Langham, who told him that

Thomas hit her in the face with a wine bottle.

       Deputy Brandon Przygocki, with assistance from other officers, arrested Margo

Thomas. Law enforcement did not, before placing Thomas in jail, seek a medical

evaluation of Thomas because officers concluded she lacked any injuries.

       Margo Thomas first sought medical attention on December 12, 2017 at Summit

Urgent Care. Her treating doctor noted that Thomas had elevated blood pressure,

tenderness to palpation in the submandibular area, and some “bilateral fullness or

swelling in that area.” RP at 484. The provider also wrote that Thomas had multiple

hematomas over her body.

       On January 8, 2018, Margo Thomas sought treatment at Puget Sound Ear, Nose,

and Throat. During an examination, Thomas complained of neck pain. The doctor

performed a laryngoscopy and noted Thomas “has normal laryngeal function and no

evidence of ongoing swelling or inflammation.” Ex. 26.

       Margo Thomas returned to Summit Urgent Care for a follow-up examination on

February 24, 2018. At that appointment, her provider noted a four centimeter long linear

indentation along her scalp. RP 487. The physician found no other abnormalities.

                                             5
No. 37355-0-III
State v. Thomas


                                      PROCEDURE

        The State of Washington initially charged Margo Thomas with domestic violence

assault in the second degree with the level of the assault being based on an assault of

Sandra Langham with a deadly weapon, the wine bottle. Later the State moved to amend

the information to change the basis of the second degree assault to an intentional assault

that recklessly inflicted substantial bodily injury on Sandra Langham. In the intervening

weeks, the State had received Langham’s medical records that mentioned the orbital

fracture.

       In response to the State’s motion to amend the information, Margo Thomas moved

to dismiss for lack of probable cause. Thomas argued that Sandra Langham’s deposition

testimony established that Langham could not remember the events that caused her

injury. The State responded that Langham informed a law enforcement officer at the

scene that Thomas hit her with a wine bottle. The State highlighted that an orbital

fracture is a serious injury. The trial court granted the State’s motion to amend the

information and denied Thomas’ motion to dismiss the charge. Margo Thomas asserted

the defense of self-defense.

       Margo Thomas planned to call as a trial witness Jennifer Stankus, M.D., J.D., an

emergency room physician, to testify about the injuries Thomas, not Sandra Langham,

suffered and the effects of strangulation. Dr. Stankus did not personally examine Thomas

or produce an independent medical examination report. Instead, Stankus reviewed

                                             6
No. 37355-0-III
State v. Thomas


medical records, photographic evidence, and the police reports in forming a medical

opinion. In a written report, Dr. Stankus wrote:

              I will testify that it is my expert opinion, on a more probable basis
       than not, that there is evidence of strangulation of Margo Thomas in this
       case, and that during the time of strangulation, any level of use of force in
       self-defense would be justified.

Clerk’s Papers (CP) at 151.

       The State of Washington moved to exclude Dr. Jennifer Stankus’ testimony. The

trial court initially granted the motion in full. The court reasoned that Stankus solely

relied on Margo Thomas’ statements to medical providers as to being strangulated, such

that Stankus’ testimony would merely address the credibility of Thomas. The medical

records mentioned no objective symptoms of strangulation. Also, the trial court ruled

that Stankus could not provide a legal opinion that any strangulation justified Thomas’

assertion of self-defense.

       The trial court later modified its ruling excluding Dr. Jennifer Stankus’ testimony

and ruled that Stankus could testify to the contents of Margo Thomas’ medical records

and the meaning of medical terms contained in the records. The court ruled, however,

that Dr. Stankus could not opine that Thomas was “strangled” or use the word

“strangulation,” because the word is a “term of art.” RP at 366. The trial court observed

that Thomas’ medical records did not record that Thomas reported being grabbed around

the neck, being strangled, losing her breath, or verging on unconsciousness. The trial


                                              7
No. 37355-0-III
State v. Thomas


court affirmed its ruling that Stankus could not testify to Thomas’ actions being

“justifiable.” RP at 354.

       During the jury trial, Sandra Langham’s neighbor, Jeffrey Johnson, testified about

his interaction with Margo Thomas the night of December 9, 2017:

               [JOHNSON]: When [Margo Thomas] first came at me, I just went
       up in a defensive mode and just protected myself. And then she backed off.
       And she came at me again, and I just put my foot up and held her at bay.
       And then at some point, I knocked her to the ground. I just, you know, it
       wasn’t that I was fearful that I was going to be injured, it was more I just
       wanted to protect myself and keep her there. My main objective was just to
       keep her there until the police got there. And the whole time, I’m talking to
       911.
               [THE STATE]: And what are you saying to 911?
               [JOHNSON]: I’m talking to them and I’m like, I’m like ‘This is
       getting way out of control.’ And she kept coming at me, and I, I had said,
       ‘Do I need to go get a weapon to defend myself? Because this, you can’t
       keep doing this. Sit down. Sit down on your pillow.’ And then she backed
       off, and she threw everything on the ground, and she said, ‘Who are you?
       Who? And what are you doing?’ And I said, ‘I’m here to keep you here.’
       And she goes ‘Why?’ And I said, ‘Because your sister’s in my house right
       now beaten to a pulp.’ And I said, ‘What’s going on?’ I was still trying to
       figure out what was going on. And she said, ‘I don’t know anything about
       that.’ And I said, ‘Are you kidding me?’ I said, ‘You know nothing about
       the fact that your sister is bleeding profusely right now?’ She goes, ‘I know
       nothing. She’s fine. My sister’s fine.’ And that was when I realized that
       something was amiss here, that she wasn’t accepting culpability or. At that
       time, I didn’t know if it was her actually or not. But when she was
       aggressive towards me, that was an indicator that something weird was
       going on.

RP at 317-18.

       Sandra Langham testified at trial that she did not see a wine bottle hit her. She just

remembered “boom.” RP at 427-28. During cross-examination, Langham conceded that

                                             8
No. 37355-0-III
State v. Thomas


her sister, Margo Thomas probably sustained injuries during the scuffle, because

Langham defended herself and struck Thomas. Langham admitted that her memory is

vague concerning events of that night, but she remembered being hit and knocked

unconscious. The defense read from Langham’s prior deposition testimony:

              [DEFENSE COUNSEL]: So drawing your attention to those lines,
      the lines of 6 through 11, Ms. Langham, were you asked the question: ‘If
      she had bruises on her neck, could you have caused those?’ Answer: ‘Yes.
      I’m sure that anything that she had and anything that I had, my bruises on
      my neck, my bruises on my back, all the bruises I had, I’m sure she had
      matching bruises.’ Question: ‘Why are you sure of that?’ ‘Because I had
      bruises all over my neck.’ Were you asked those questions and did you
      give those answers under oath at that deposition on that day?
              [LANGHAM]: Yes.
              [DEFENSE COUNSEL]: Look at the next lines, 7 through 19,
      please. 17 through 19. Question: ‘What caused the bruises to hurt?’
      Answer: ‘Well, if she has bruises on her neck, then I probably put my hands
      on her neck, but I did not strangle her.’ Were you asked that question and
      did you give that answer?
              [LANGHAM]: Yes.
              [DEFENSE COUNSEL]: Would you agree that you did have your
      hands on your sister’s neck that night?
              [LANGHAM]: What I said was if she had bruises on her neck, then
      maybe I put my hands on her neck, but I do not remember strangling her,
      no. That’s what I said.
              [DEFENSE COUNSEL]: Is it fair to say that if she had bruises on
      her neck that you caused them?
              [THE STATE]: Objection. Calls for speculation.
              COURT: Overruled.
              [LANGHAM]: Yeah. Yes. Yes.

RP at 444-45. On re-direct, Sandra Langham reiterated that she did not have a visual

memory of Margo Thomas approaching her and hitting her with the bottle, but glass

matching the wine bottle later lay everywhere in the house.

                                            9
No. 37355-0-III
State v. Thomas


       During trial, Deputy Brandon Przygocki testified about his interaction with Margo

Thomas and Sandra Langham. He also testified to his experience with domestic violence

investigations:

               [THE STATE]: On the topic of injuries, you talked already about
       your training and experience as far as being a drug recognition expert. Do
       you have any training and experience specifically with respect to
       investigating domestic violence crimes?
               [PRZYGOCKI]: Yes, I do.
               [THE STATE]: Okay. Tell us something about that.
               [PRZYGOCKI]: When we’re trained in the academy and through
       continuing education with domestic violence crimes, the first thing we want
       to do is determine if there was a crime after securing a scene. Once we’ve
       determined that there has been a crime committed, we determine who the
       primary aggressor is.
               [THE STATE]: And is that the procedure you followed in this case?
               [PRZYGOCKI]: Yes, it is.

RP at 402-03. Thomas’ attorney did not object to this line of questioning.

       Margo Thomas testified that she lacked any memory of striking Sandra Langham

in the face with a wine bottle. The prosecutor asked:

              [THE STATE]: So explain to me how it is that you had to, that you
       struck your sister in self-defense.
              [THOMAS]: I can’t explain that to you.
              [THE STATE]: Okay. So under oath, as you sit here today, you
       can’t say that you acted in self-defense, can you? Because you don’t
       remember, do you? According to what you just said.
              [THOMAS]: That’s true.

RP at 555-56.

       Margo Thomas’ expert, Dr. Jennifer Stankus, testified to injuries that Margo

Thomas alleged she sustained during the fight with Sandra Langham. According to Dr.

                                           10
No. 37355-0-III
State v. Thomas


Stankus, the medical records show that Thomas injured her neck. Despite the earlier

order on limine and over the State’s objection, Stankus opined that the injury to the neck

was consistent with a strangulation. The trial court sustained an objection to defense

counsel’s question of whether Thomas’ injuries were “likely caused by strangulation.”

RP 524-25.

       The trial court instructed the jury on self-defense as proposed by Margo Thomas.

The trial court also gave a first aggressor instruction as proposed by Thomas:

              No person may, by any intentional act reasonably likely to provoke a
       belligerent response, create a necessity for acting in self-defense and
       thereupon to use force upon or toward another person. Therefore, if you
       find beyond a reasonable doubt that the defendant was the aggressor, and
       that defendant’s acts and conduct provoked or commenced the fight, then
       self-defense is not available as a defense.

CP at 213 (jury instruction 13). This instruction is identical to 11 WASHINGTON

PRACTICE WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 16.04, at 256 (4th ed.

2016) (WPIC 16.04).

       The State argued during summation that Margo Thomas supplied no testimony of

a need to use the level of force attended to smashing of a wine bottle on someone’s head.

The prosecution emphasized that Thomas failed to pinpoint any moment when she

thought to herself “I am about to be seriously injured. It is imminent. I got to defend

myself now.” RP at 646-47.




                                            11
No. 37355-0-III
State v. Thomas


       The jury found Margo Thomas guilty of second degree assault and entered a

special verdict that Thomas and Sandra Langham were members of the same family.

                                 LAW AND ANALYSIS

                                  Sufficiency of Evidence

       On appeal, Margo Thomas challenges the sufficiency of the evidence for her

conviction for assault in the second degree. She contends the evidence does not support a

finding that she did not act in self-defense. The State responds that overwhelming

evidence showed Thomas did not act in self-defense when striking Langham with the

wine bottle.

       In a criminal case, the State must provide sufficient evidence to prove each

element of the charged offense beyond a reasonable doubt. Jackson v. Virginia, 443

U.S. 307, 316, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). In reviewing a challenge to the

sufficiency of the evidence, this court asks if, after viewing the evidence in a light most

favorable to the State, any rational trier of fact could have found the essential elements of

the crime beyond a reasonable doubt. State v. Green, 94 Wn.2d 216, 221-22, 616 P.2d

628 (1980). All reasonable inferences from the evidence are drawn in favor of the State

and interpreted most strongly against the defendant. State v. Salinas, 119 Wn.2d 192,

201, 829 P.2d 1068 (1992). Deference is given to the fact finder on issues of conflicting

testimony, credibility of witnesses, and persuasiveness of evidence. State v. Ague-

Masters, 138 Wn. App. 86, 102, 156 P.3d 265 (2007).

                                             12
No. 37355-0-III
State v. Thomas


       Second degree assault, as charged by the State, required the State to prove that

Margo Thomas intentionally assaulted Sandra Langham and thereby recklessly inflicted

substantial bodily harm. RCW 9A.36.021(1)(a). When the trial court instructs the jury

on self-defense, as here, the State must disprove the defense beyond a reasonable doubt.

State v. Acosta, 101 Wn.2d 612, 615-16, 683 P.2d 1069 (1984).

       Margo Thomas agrees the State proved that she intentionally struck her sister and

that Sandra Langham suffered substantial bodily harm. Thomas claims that the State

failed to disprove she acted in self-defense at the time she caused Langham injury.

Thomas highlights her memory of Langham strangling her to unconsciousness.

       One may lawfully use necessary force against another in self-defense. RCW

9A.16.020. RCW 9A.16.020(3) reads that a person may act in self-defense when he or

she reasonably apprehends that he or she is about to be injured.

       To raise self-defense before the jury, Margo Thomas bore the initial burden of

producing some evidence demonstrating self-defense. State v. McCreven, 170 Wn. App.

444, 462, 284 P.3d 793 (2012). Then, the burden shifted to the prosecution to prove the

absence of self-defense beyond a reasonable doubt. State v. Walden, 131 Wn.2d 469,

473-74, 932 P.2d 1237 (1997) . The jury evaluates evidence of self-defense from the

standpoint of the reasonably prudent person, knowing all that the defendant knows and

seeing all that the defendant sees. State v. Janes, 121 Wn.2d 220, 238, 850 P.2d 495

(1993). The degree of force used in self-defense is limited to what a reasonably prudent

                                            13
No. 37355-0-III
State v. Thomas


person would find necessary under the conditions as they appeared to the defendant.

State v. Walden, 131 Wn.2d at 474; State v. Bailey, 22 Wn. App. 646, 650, 591 P.2d

1212 (1979).

       We reject Margo Thomas’s challenge to her conviction because the trier of fact

was not required to believe her testimony. The jury could instead accept Sandra

Langham’s version of how the altercation transpired. The evidence, in a light favorable

to the State, showed that the verbal argument escalated into a physical altercation, during

which both sisters pushed each other. Thomas struck Sandra Langham with a wine bottle

in the face rendering her unconscious. The jury could conclude the action of Thomas

exceeded any level of violence needed to defend herself. The jury could have concluded

that, because of the lack of physical injuries to Thomas, Thomas did not need any

defense. Also Thomas admitted that she could not remember what led her to act in self-

defense. Accordingly, Thomas struggled to show she reasonably apprehended an

imminent injury and that using a wine bottle to strike Langham in the face was

reasonably prudent.

                                First Aggressor Instruction

       Margo Thomas contends she was denied due process and the right to present a

defense when the trial court gave the jury a first aggressor instruction without sufficient

evidence to support the instruction and because the court failed to instruct the jury that

words alone do not make a defendant the first aggressor. Nevertheless, Thomas never

                                             14
No. 37355-0-III
State v. Thomas


objected to the instruction before the trial court. Instead, she proposed the instruction

with the language delivered to the jury. We might deny review of this assignment of

error based on invited error, but we address the merits. We would otherwise need to

review the merits of the assignment of error because Thomas contends her trial counsel

acted ineffectively when proposing the jury instruction.

          We first address the sufficiency of evidence for the first aggressor instruction.

Jury instruction 13 told the jury that, if Margo Thomas engaged in “any intentional act

reasonably likely to provoke a belligerent response” that created “a necessity for” her

sister to act in self-defense, the jury should deny Thomas the defense of self-defense. CP

at 213.

          When the record includes credible evidence from which a reasonable juror could

find that the defendant provoked the need to act in self-defense, an aggressor instruction

is appropriate. State v. Riley, 137 Wn.2d 904, 909-10, 976 P.2d 624 (1999). Whether the

State produced sufficient evidence to justify an aggressor instruction presents a question

of law that this court reviews de novo. State v. Anderson, 144 Wn. App. 85, 89, 180 P.3d

885 (2008).

          We generally review the evidence in a light most favorable to the party requesting

the instruction. State v. Wingate, 155 Wn.2d 817, 823 n.1, 122 P.3d 908 (2005). This

rule assumes that the party requesting the instruction defends, on appeal, the validity of

the instruction. Margo Thomas, the party challenging the instruction on appeal,

                                                15
No. 37355-0-III
State v. Thomas


requested the instruction. We, therefore, review the evidence in the light most favorable

to the State since the State seeks to defend the instruction on appeal.

       Generally, the right to self-defense cannot be “successfully invoked by an

aggressor or one who provokes an altercation.” State v. Riley, 137 Wn.2d at 909 (1999).

The trial court may deliver the aggressor instruction when (1) the jury can reasonably

determine from the evidence that the defendant’s conduct provoked the fight, (2) the

evidence conflicts as to whether the defendant’s conduct provoked the fight, or (3) the

evidence shows that the defendant made the first move by drawing a weapon. State v.

Riley, 137 Wn.2d at 909-10; State v. Sullivan, 196 Wn. App. 277, 289, 383 P.3d 574

(2016). The provoking conduct must be intentional conduct reasonably likely to elicit a

belligerent response. State v. Sullivan, 196 Wn. App. at 289-90. The conduct cannot be

words alone. State v. Riley, 137 Wn.2d at 911.

       The State relies primarily on State v. Kee, 6 Wn. App. 2d 874, 431 P.3d 1080

(2018). The State charged Tiana Kee with second degree assault of Adam Ostrander

after she punched him in the face and broke his nose. At trial, Ostrander and his brother,

Brandon Lester, both testified that, after their verbal quarrel, Kee struck Ostrander first.

Alternatively, Kee and another witness, Cody Bemis, testified that Ostrander hit Kee first.

The Kee court noted that, regardless of who threw the first punch, both Kee and

Ostrander hit each other before Kee finally hit Ostrander and broke his nose. Because of

the conflicting evidence regarding whether Kee was the first aggressor and proved the

                                             16
No. 37355-0-III
State v. Thomas


need to act in self-defense, the court held sufficient evidence supported giving the

instruction.

         We deem State v. Kee analogous. Margo Thomas’ and Sandra Langham’s

respective testimony diverges as to who first provoked the assault on Langham.

According to Langham, she and Thomas yelled, shoved each other, and, while quarreling

on the ground, Thomas struck her in the face with a wine bottle. According to Thomas,

Langham provoked the fight when she pushed Thomas into the wood stove. Because of

Sandra Langham’s testimony, we hold that sufficient evidence supported the giving of

the first aggressor instruction.

         Margo Thomas next complains that the first aggressor instruction failed to instruct

the jury that words alone cannot be the provoking act. She contends that the giving of the

instruction, absent the “words alone” language, denied her due process. The State argues

the trial court properly instructed the jury because WPIC 16.04 does not include “words

alone” language and no evidence suggests that the physical altercation was provoked by

words.

         As noted earlier, words alone cannot be the provoking conduct that justifies a first

aggressor instruction. State v. Riley, 137 Wn.2d 904, 910-11 (1999). WPIC 16.04 does

not instruct the jury that words alone are not adequate provocation to negate self-defense.

Nevertheless, this court, in State v. Kee, 6 Wn. App. 2d 874 (2018), reversed a conviction

for second degree assault when the trial court failed to instruct the jury that words alone

                                              17
No. 37355-0-III
State v. Thomas


are not sufficient to make a defendant the first aggressor. Margo Thomas argues that

State v. Kee required the trial court to instruct the jury that words alone cannot provoke

the assaultive conduct when delivering a first aggressor instruction. We disagree.

       State v. Kee holds disparate facts with regard to words provoking an attack. To

repeat, Tiana Kee punched Adam Ostrander in the face, breaking his nose. Kee’s and

Ostrander’s interaction started with a verbal altercation. Kee exclaimed: “[D]o you want

me to ‘F’ you[r] little butt up?” before the fight ensued. State v. Kee, 6 Wn. App. 2d at

880. Kee also made a derogatory comment before breaking his nose. The State

emphasized during closing argument that Kee initiated the incident by first speaking to

Ostrander in an aggressive manner.

       In State v. Kee, the court used a first aggressor instruction similar to the one given

by the trial court here. This court stated:

               When there is evidence that the defendant provoked an altercation
       with words, particularly when the State suggests that those words constitute
       first aggression, the language of WPIC 16.04 is inadequate to convey the
       law established in Riley.

State v. Kee, 6 Wn. App. 2d at 882. The Kee court held that by failing to instruct the jury

that words alone are insufficient provocation for purposes of the first aggressor

instruction, the trial court failed to instruct the jury about the relevant self-defense legal

standards.




                                               18
No. 37355-0-III
State v. Thomas


       Neither Sandra Langham nor Margo Thomas testified that Thomas struck

Langham due to verbal comments or exchanged threats. Instead, both women testified

Langham asked Thomas to leave the house and they yelled at each other before pushing

and shoving ensued. The State argued Thomas was the aggressor by her physical

conduct, not her words. Therefore, the evidence did not support an instruction about

words alone.

                             Ineffective Assistance of Counsel

       Margo Thomas contends her trial counsel performed ineffectively three times.

First, her counsel performed deficiently by proposing the first aggressor instruction when

no witness testified that she was the first aggressor. Second, her counsel failed to request

an instruction that words alone cannot be the act or conduct that provoked the affray.

Third, her counsel was ineffective for failing to object to inadmissible evidence.

       To demonstrate ineffective assistance of counsel, a defendant must make two

showings. First, the defendant must establish that defense counsel’s representation was

deficient in that the performance fell below an objective standard of reasonableness based

on consideration of all circumstances. State v. Kyllo, 166 Wn.2d 856, 862, 215 P.3d 177

(2009). Second, a defendant must show that defense counsel’s representation prejudiced

the defendant. This entails showing a reasonable probability that, except for counsel’s

errors, the result of the proceedings would have been different. State v. McFarland, 127

Wn.2d 322, 334-35, 899 P.2d 1251 (1995). A reviewing court need not consider both

                                             19
No. 37355-0-III
State v. Thomas


prongs of the ineffective assistance analysis if a defendant fails on one. In re Personal

Restraint Petition of Crace, 174 Wn.2d 835, 847, 280 P.3d 1102 (2012).

       We apply a strong presumption that counsel’s performance was reasonable. State

v. Studd, 137 Wn.2d 533, 551, 973 P.2d 1049 (1999). When counsel’s conduct can be

characterized as legitimate trial strategy or tactics, performance is not deficient. State v.

McFarland, 127 Wn.2d at 336.

       We reject Margo Thomas’ contention that her trial attorney performed

ineffectively when proposing the first aggressor instruction and in drafting the instruction

with language that omitted “words alone.” We have already ruled that the evidence

supported the delivery of the instruction and that Thomas was not entitled to the words

“words alone” language. Therefore, Thomas cannot show prejudice by any deficient

performance of counsel.

       Margo Thomas contends that her defense attorney provided ineffective assistance

when she failed to object to testimony from Deputy Brandon Przygocki that, when

investigating the altercation between Margo Thomas and Sandra Langham, he followed

his domestic violence crimes training to “determine who the primary aggressor is” “once

we’ve determined that there has been a crime committed.” RP at 403. Thomas argues

that the sheriff deputy offered impermissible and prejudicial opinion testimony. The

State responds that defense counsel’s decision to not object was for strategic reasons.

       When a defendant bases her ineffective assistance of counsel claim on counsel’s

                                              20
No. 37355-0-III
State v. Thomas


failure to object to trial testimony, the defendant must show that the objection would have

succeeded. State v. Gerdts, 136 Wn. App. 720, 727, 150 P.3d 627 (2007). The defendant

also must show that the result of the trial would have been different if the evidence had

not been admitted. In re Personal Restraint Petition of Davis, 152 Wn.2d 647, 714, 101

P.3d 1 (2004). To prevail on this issue, the defendant must rebut the presumption that

counsel’s failure to object may be characterized as legitimate trial strategy or tactics. In

re Personal Restraint Petition of Davis, 152 Wn.2d at 714. For example, trial counsel

may not want to object to avoid emphasizing the testimony. In re Personal Restraint

Petition of Davis, 152 Wn.2d at 714.

       To determine whether a witness’ testimony constitutes improper opinion

testimony, courts consider the type of witness, the specific nature of the testimony, the

nature of the charges, the type of defense, and other evidence before the trier of fact.

State v. Montgomery, 163 Wn.2d 577, 591, 183 P.3d 267 (2008). When a police officer

opines impermissibly, it raises additional concerns because an officer’s testimony often

carries a special aura of reliability. State v. Kirkman, 159 Wn.2d 918, 928, 155 P.3d 125

(2007); State v. Rafay, 168 Wn. App. 734, 806, 285 P.3d 83 (2012).

       We conclude that Deputy Brandon Przygocki’s testimony constituted an

impermissible comment on Margo Thomas’ guilt. Thomas asserted the defense of self-

defense at trial. The first aggressor instruction told the jury that it could not consider

self-defense as a defense if it found the defendant was the aggressor. Deputy Przygocki

                                              21
No. 37355-0-III
State v. Thomas


told the jurors that he had determined a crime had been committed and that he identified

the primary aggressor. Although he did not name Margo Thomas as the primary

aggressor, the jurors could have drawn this conclusion because law enforcement arrested

her at the scene.

       We conclude, however, that trial counsel’s failure to object to the testimony did

not fall below prevailing professional standards and did not prejudice Margo Thomas.

The deputy’s testimony regarding his normal practice and procedures, when investigating

domestic violence crimes, was limited in nature. Margo Thomas’ counsel may not have

wanted to risk emphasizing the testimony with an objection. Even without Deputy

Brandon Przygocki’s opinion testimony, the jury would have concluded that Przygocki

considered Thomas to be the first aggressor, since law enforcement only arrested

Thomas.

                                Jennifer Stankus Testimony

       Finally, Margo Thomas assigns error to the trial court’s exclusion of opinion

evidence from her expert witness on the effect of being strangled in a case involving self-

defense.

       Margo Thomas argues that this court should apply a de novo standard of review to

the trial court’s exclusion of Dr. Jennifer Stankus’ testimony because the trial court’s

ruling implicated her constitutional right to present a defense. The State argues that an



                                             22
No. 37355-0-III
State v. Thomas


abuse of discretion standard should be applied. We do not address this question because,

under either standard, we would affirm.

       A criminal defendant has a right under the Sixth Amendment of the United States

Constitution and article I, section 22 (amendment 10) of the Washington Constitution

to present a defense. State v. Maupin, 128 Wn.2d 918, 924, 913 P.2d 808 (1996). The

right to present a defense includes the right to offer the testimony of witnesses and to

compel their attendance, if necessary. Washington v. Texas, 388 U.S. 14, 19, 87 S. Ct.

1920, 18 L. Ed. 2d 1019 (1967); State v. Maupin, 128 Wn.2d at 924. This includes a

defendant’s right to put, before a jury, evidence that might influence the determination of

guilt. Pennsylvania v. Ritchie, 480 U.S. 39, 56, 107 S. Ct. 989, 94 L. Ed. 2d 40 (1987).

The right to present a defense is not absolute, however, as a defendant has no

constitutional right to have irrelevant or inadmissible evidence admitted in his or her

defense. State v. Jones, 168 Wn.2d 713, 720, 230 P.3d 576 (2010).

       Margo Thomas contends that Dr. Jennifer Stankus’ testimony regarding the effects

of strangulation was relevant for the jury to assess whether her fear and use of force was

reasonable. She also claims Dr. Stankus’ testimony met the admissibility requirements

under ER 702.

       Under ER 401:

              “Relevant evidence” means evidence having any tendency to make
       the existence of any fact that is of consequence to the determination of the


                                             23
No. 37355-0-III
State v. Thomas


       action more probable or less probable than it would be without the
       evidence.

Evidence which is not relevant is not admissible. ER 402. Relevance presents a very low

bar. State v. Darden, 145 Wn.2d 612, 621, 41 P.3d 1189 (2002). To be relevant,

evidence must meet two requirements: (1) the evidence must have a tendency to prove or

disprove a fact (probative value), and (2) the fact must be of consequence in the context

of the other facts and the applicable substantive law (materiality). Davidson v.

Municipality of Metro. Seattle, 43 Wn. App. 569, 573, 719 P.2d 569 (1986).

Relevant evidence encompasses facts that present both direct and circumstantial evidence

of any element of a claim or defense. State v. Rice, 48 Wn. App. 7, 12, 737 P.2d 726

(1987). Facts tending to establish a party’s theory of the case will generally be found to

be relevant. State v. Mak, 105 Wn.2d 692, 703, 718 P.2d 407 (1986).

       Margo Thomas retained expert witness, Dr. Jennifer Stankus, who never examined

Thomas but formed the basis of her opinion by reviewing Thomas’ medical records and

the police reports. Dr. Stankus planned to testify that medical evidence supports the

claim of strangulation of Thomas by Sandra Langham. She planned to testify about the

pain and the panic that strangulation creates and a victim’s expected response in self-

defense. She also wished to testify that any level of force to stop that threat to life would

be justified.




                                             24
No. 37355-0-III
State v. Thomas


       Relying on those same medical records, the trial court saw no objective evidence

of strangulation—only Thomas’ self-reporting of strangulation. The trial court ruled that

Dr. Stankus could not testify about strangulation or about any justification for self-

defense as that testimony would express an opinion about the defendant’s credibility and

supply legal conclusions.

       Under ER 403:

               Although relevant, evidence may be excluded if its probative value
       is substantially outweighed by the danger of unfair prejudice, confusion of
       the issues, or misleading the jury, or by considerations of undue delay,
       waste of time, or needless presentation of cumulative evidence.

While evidence of the effects of strangulation may have been minimally relevant to

Margo Thomas’ self-defense theory, any probative value was substantially outweighed

by the danger of prejudice. The medical reports showed no objective evidence of

strangulation. The recording of “strangulation” comes only from Thomas’ self-reports to

her doctors that she had been strangled in early December and self-reports that she had

tenderness to palpation on the left side of her neck. When examined three days after the

incident, her provider noted she had full range of motion of her head and neck. A month

later at her January 8, 2018 appointment, doctors performed a laryngoscopy and they

found no evidence of swelling or inflammation.

       Additional evidence admitted at trial revealed that Margo Thomas never reported

to the police that she had been strangled. Thomas testified that she has “a vision” from


                                             25
No. 37355-0-III
State v. Thomas


that night of Sandra Langham strangling her. RP at 552. A trial court properly

excludes evidence that is remote, vague, speculative, or argumentative. State v. Kilgore,

107 Wn. App. 160, 185, 26 P.3d 308 (2001), aff’d 147 Wn.2d 288, 53 P.3d 974 (2002).

                                     CONCLUSION

      We affirm the conviction of Margo Thomas for second degree assault.

      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.


                                             _________________________________
                                             Fearing, J.

WE CONCUR:




______________________________
Siddoway, J.


______________________________
Lawrence-Berrey, J.




                                           26
