                                                                         FILED
                                                                      MARCH 24, 2016
                                                                 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. 32548-2-111
                     Respondent,              )
                                              )
      v.                                      )
                                              )
GEORGE WALTER LEWIS,                          )         UNPUBLISHED OPINION
                                              )
                     Appellant.               )

       SIDDOWAY, C.J. -Ajury found George Lewis guilty of first degree burglary and

fourth degree assault. At trial, the court excluded evidence of two previous violent

altercations between Mr. Lewis and Brent Harwood, one of the victims. On appeal, Mr.

Lewis argues that, by excluding the evidence, the trial court violated his Sixth

Amendment right to present a defense-specifically the "defense of another." Mr. Lewis

also argues that he received ineffective assistance of counsel when his trial counsel did
No. 32548-2-III
State v. Lewis


not request an instruction on defense of another. Because evidence of the two

altercations was irrelevant, the court did not err in excluding it.

       Likewise, because insufficient evidence existed to support an instruction on

defense of another, counsel's failure to request such an instruction did not amount to

ineffective assistance of counsel. We affirm.

                                               FACTS

       A jury found George Lewis guilty of first degree burglary and fourth degree

assault based on events that happened at Kari Chapman's apartment early on the morning

of October 19, 2013.

       Prior to the events that led to this case, Mr. Lewis and Ms. Chapman had dated for

12 years. They broke up in June 2013, and at some point thereafter Ms. Chapman began

dating Brent Harwood. However, on October 16 or 17, Ms. Chapman met Mr. Lewis at

his motel to discuss dating again. Mr. Lewis also claims that at this time Ms. Chapman

told him that she and Mr. Harwood had been arguing and that he had been showing up at

her apartment without her permission.

       On October 18, Ms. Chapman and Mr. Lewis texted about going to Spokane

together that day. Instead, Mr. Lewis ran a pool tournament that evening. He texted Ms.

Chapman between 11 :00 p.m. and midnight, but she did not respond to him because she

was annoyed about his change of plans. According to Ms. Chapman, after she did not




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No. 32548-2-111
State v. Lewis


respond, he sent her a text that was "snide." Report of Proceedings (RP) at 210. Neither

of them attempted any further communication with the other that night.

       Sometime between midnight and 2 :00 a.m. on the morning of October 19, Mary

Spencer (Ms. Chapman's neighbor), called Mr. Lewis to tell him his lost coat was at her

apartment. Consequently, Mr. Lewis stopped by Ms. Spencer's apartment on his way

home from the pool tournament. Two of his friends from the pool tournament were with

him. Ms. Spencer met Mr. Lewis on the outside stairwell with his coat, and, according to

Mr. Lewis, told him that Mr. Harwood and Ms. Chapman had been arguing in her

apartment earlier. Ms. Spencer testified at trial that she could not remember if Mr.

Harwood and Ms. Chapman had been arguing that evening, but that Mr. Lewis "was

always worried about Kari, because of all the fights." RP at 119. Ms. Spencer also

testified that she did not tell Mr. Lewis that she was concerned about Ms. Chapman.

       Mr. Lewis went to Ms. Chapman's apartment and knocked. He claims he was

concerned for Ms. Chapman's safety. Mr. Harwood opened the door slightly, and then

quickly shut and dead bolted it. Mr. Lewis walked back down to his truck, but then

decided to go back. He did not contact law enforcement about his concerns. He testified

that though he did not ask his two friends to come with him, they followed him up the

stairs. He knocked twice at the door and then one of his friends kicked the door in. That

friend, allegedly unbeknownst to Mr. Lewis, had brought with him a baseball bat and an

Airsoft gun that Mr. Lewis kept in his car.

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No. 32548-2-III
State v. Lewis


       Mr. Lewis and Mr. Harwood disagree on what happened next. Mr. Lewis testified

that he went straight into the bedroom where Mr. Harwood was hiding with a knife, and

that Mr. Harwood closed the door and cornered Mr. Lewis. Mr. Lewis's friend tried to

push in the door to help him.

       Mr. Harwood, on the other hand, testified that he was in Ms. Chapman's bedroom

when he heard the front door being kicked in. Mr. Lewis then attempted to enter Ms.

Chapman's bedroom. Mr. Harwood attempted to keep Mr. Lewis out by leaning on the

door, but Mr. Lewis and his friend eventually forced their way in. According to Mr.

Harwood, he took out his knife to protect himself and used a curtain rod to keep Mr.

Lewis and his friend at bay. He testified that Mr. Lewis threatened to beat him up, and

eventually struck him in the head.

       Mr. Lewis and Mr. Harwood both agree that Ms. Chapman was in the bathroom

down the hall this entire time. Mr. Lewis claims he decided to leave when he realized his

friends had turned the situation into something that Mr. Lewis had no intention of it

becoming, and when he realized Ms. Chapman was upset with him and not with Mr.

Harwood. Ms. Chapman told Mr. Lewis she was going to call the police. As Mr. Lewis

was leaving the apartment he responded that what had happened was all Ms. Chapman's

fault, and he pushed her backwards into the bathtub.

       The police located Mr. Lewis on November 22, 2013. Officer Adam Munro, the

arresting officer, testified that Mr. Lewis told him that he had kicked in the door at Ms.

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No. 32548-2-111
State v. Lewis


Chapman's apartment and that he had been there to make sure she was okay. He also

said he had beaten Mr. Harwood up. Mr. Lewis later denied making any of these

statements to Officer Munro. Mr. Lewis was charged with fourth degree assault for

striking Mr. Harwood, and with first degree burglary.

       During trial, the State made a motion in limine to exclude two prior altercations

between Mr. Lewis and Mr. Harwood. The first occurred in mid-July of 2013.

According to Mr. Lewis, he had knocked on Ms. Chapman's apartment door and Mr.

Harwood had opened it and said, "step the fuck away from me or I' 11 fucking stab you."

RP at 27. Ms. Chapman does not appear to have been present on this occasion. The

second altercation occurred on August 4, 2013. Mr. Lewis and Ms. Chapman were

sitting in Mr. Lewis's car. Mr. Harwood saw them together and told Ms. Chapman to get

out of the truck or he was going to smash it. She did not get out of the truck, and Mr.

Harwood smashed all the windows out of the truck with a crowbar. He injured Ms.

Chapman in the process, requiring her to get seven stitches. Ms. Chapman told the

defense investigator that this situation had been a "pissing match between the two boys,"

and that Mr. Harwood had not been trying to hit or hurt her. RP at 191.

      At trial, Mr. Lewis sought to introduce evidence of these two altercations to

support his assertion that he was acting in defense of Ms. Chapman. The trial court

excluded this evidence, finding that no evidence supported its admission because Mr.

Lewis denied committing the very acts on the night of the charged offenses that would

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No. 32548-2-III
State v. Lewis


have been justified by such a defense. The court instructed the jury on self-defense, but

not on defense of another. Mr. Lewis appeals.

                                        ANALYSIS

       On appeal Mr. Lewis argues that by excluding the evidence the trial court

effectively barred him from presenting his defense in violation of the Sixth Amendment.

He also argues he received ineffective assistance of counsel because counsel did not ask

the court to instruct the jury on defense of another.

                       I. Sixth Amendment Right to Present a Defense

       Mr. Lewis contends the trial court violated his Sixth Amendment right to present

a defense when it excluded evidence of his two prior altercations with Mr. Harwood.

       A claimed violation of the Sixth Amendment right to present a defense is reviewed

de novo. State v. Jones, 168 Wn.2d 713, 719, 230 P.3d 576 (2010). Under the Sixth

Amendment, "' [t]he right of an accused in a criminal trial to due process is, in essence,

the right to a fair opportunity to defend against the State's accusations."' Id. at 720

(quoting Chambers v. Mississippi, 410 U.S. 284, 294, 93 S. Ct. 1038, 35 L. Ed. 2d 297

(1973)). "A defendant's right to an opportunity to be heard in his defense ... is basic in

our system of jurisprudence." Id.

       That right is not absolute, however. Id. For evidence to be admissible it must be

at least minimally relevant. State v. Darden, 145 Wn.2d 612, 621, 41 P.3d 1189 (2002).




                                              6
No. 32548-2-III
State v. Lewis


To be relevant, evidence must tend to prove or disprove the existence of a fact that is of

consequence to the outcome of the case, including facts that provide evidence of any

element of a defense. ER 401; State v. Weaville, 162 Wn. App. 801, 818, 256 P.3d 426,

review denied, 173 Wn.2d 1004, 268 P .3d 942 (2011 ). A trial court's ruling on the

admissibility of evidence will be reversed only where it abused its discretion. Darden,

145 Wn.2d at 619. A trial court abuses its discretion when its ruling is "manifestly

unreasonable or exercised on untenable grounds or for untenable reasons." State v. Lord,

161 Wn.2d 276, 283-84, 165 P.3d 1251 (2007).

       "[I]f relevant, the burden is on the State to show the evidence is so prejudicial as

to disrupt the fairness of the fact-finding process at trial." Darden, 145 Wn.2d at 622.

Relevant evidence may only be withheld where the State's interest in excluding the

evidence outweighs the defendant's need for the evidence. Jones, 168 Wn.2d at 720.

Where evidence is highly probative "' it appears no state interest can be compelling

enough to preclude its introduction consistent with the Sixth Amendment.'" Id. at 720-

21 (quoting State v. Hudlow, 99 Wn.2d 1, 16, 659 P.2d 514 (1983)); see also State v.

Young, 48 Wn. App. 406, 413, 739 P.2d 1170 (1987) ("ER 403 does not extend to the

exclusion of crucial evidence relevant to the central contention of a valid defense.").

       Under ER 404(b ), evidence of prior bad acts-even if relevant and highly




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No. 32548-2-111
State v. Lewis


probative-will not be admitted to show that on the occasion in question a person acted

in conformity with a specific character trait. ER 404(b). Such evidence may, however,

be admissible for other reasons, such as to show the defendant had a reasonable

apprehension of danger-a necessary element of the defense of "defense of another."

5 KARL B. TEGLAND, WASHINGTON PRACTICE: EVIDENCE LAW AND PRACTICE § 404.6

(5th ed. 2007); ER 404(b). For evidence to be admissible under ER 404(b), the trial court

must"' ( 1) find by a preponderance of the evidence that the misconduct occurred, (2)

identify the purpose for which the evidence is sought to be introduced, (3) determine

whether the evidence is relevant to prove an element of the crime charged, and (4) weigh

the probative value against the prejudicial effect.'" State v. Foxhoven, 161 Wn.2d 168,

175, 163 P.3d 786 (2007) (quoting State v. Thang, 145 Wn.2d 630, 642, 41 P.3d 1159

(2002)).

       In Washington, use of force to defend a third party is justified to the same extent

that it is justified if the actor were defending himself. State v. Penn, 89 Wn.2d 63, 66,

568 P.2d 797 (1977). For the jury to be instructed on this defense, the defendant must not

only have been subjectively afraid, but must also produce some evidence that his

apprehension of great bodily harm or imminent danger was reasonable. State v. Werner,

170 Wn.2d 333, 337, 241 P.3d 410 (2010); State v. Janes, 121 Wn.2d 220, 238, 850 P.2d

495 (1993). Whether a defendant had a reasonable apprehension is evaluated "from the

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

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No. 32548-2-111
State v. Lewis


all the defendant sees." Id. Accordingly, "the jury is to consider the defendant's actions

in light of all the facts and circumstances known to the defendant, even those

substantially predating the killing." Id. A person may not claim defense of another ifhe

denies the acts that the defense would justify. State v. Aleshire, 89 Wn.2d 67, 71, 568

P .2d 799 ( 1977).

       Here, Mr. Lewis claims that evidence of the two altercations between himself and

Mr. Harwood was essential to his ability to show he had a reasonable apprehension of

danger to Ms. Chapman. We conclude that the trial court did not abuse its discretion in

excluding evidence of the two altercations because the evidence is irrelevant.

       First, the two prior acts are not relevant in negating the intent element of first

degree burglary because Mr. Lewis denies the actions that the defense of another would

justify. Mr. Lewis denied at trial that he had the intent necessary to be convicted for first

degree burglary. Likewise, Mr. Lewis denied using force (besides pushing Ms. Chapman

into the bathtub, and he cannot argue that he pushed her out of a reasonable apprehension

for her safety). He testified that he did not ask his two friends. to come with him or for

one of them to kick in the door, and that he did not know they had brought the baseball

bat and Airsoft gun with them. He cannot claim that he used force in defense of another

and at the same time deny using force, one of the necessary elements for proving the

defense. Penn, 89 Wn.2d at 66. Where Mr. Lewis was not entitled to assert the defense,

evidence of the prior two bad acts are irrelevant and inadmissible.

                                              9
No. 32548-2-111
State v. Lewis


       Second, the two prior acts are irrelevant because Mr. Lewis's evidence showed

that he was acting in self-defense, not in defense of another. Mr. Lewis was charged with

assault in the fourth degree for striking Mr. Harwood on the head. However, Mr. Lewis's

testimony alone shows that if he was indeed acting out of fear, it was fear for his own

safety and not for Ms. Chapman's. Mr. Lewis testified that when he entered the house,

he went straight to the bedroom, where he encountered Mr. Harwood with a knife. At

that time, Ms. Chapman was in the bathroom down the hall. The entire altercation

happened while Ms. Chapman was outside the bedroom. Accordingly, it is not plausible

that Mr. Lewis struck Mr. Harwood on the head out of a reasonable apprehension for Ms.

Chapman, who was not even in the room. Rather, Mr. Lewis appears to have acted out of

self-defense because Mr. Harwood had trapped him in the bedroom with a knife. And the

jury received an instruction on self-defense.

       Finally, Mr. Lewis would not have benefitted even if the trial court had instructed

the jury on defense of another. Washington Pattern Jury Instruction § 17 .02 reads:

              The use of force upon or toward the person of another is lawful
       when used by someone lawfully aiding a person who he reasonably
       believes is about to be injured in preventing or attempting to prevent an
       offense against the person, and when the force is not more than is
       necessary.

11 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL §

17.02, at 253 (3d ed. 2008). In defending against the burglary charge, Mr. Lewis denied

that he asked his friends to come with him, that he kicked in the door or asked his friend

                                                10
No. 32548-2-III
State v. Lewis


to do so, or that he brought the baseball bat or Airsoft gun. In defending against the

charge of fourth degree assault, Mr. Lewis never admitted that he struck Mr. Harwood.

Because he denies all of those acts of force, he cannot prove he acted in defense of

another.

       Likewise, because Mr. Lewis and Mr. Harwood were alone in the bedroom, Mr.

Lewis would have been unable to show he acted out of fear for Ms. Chapman's safety.

The trial court did not err in excluding the evidence, and as a result, Mr. Lewis was not

deprived of his Sixth Amendment right to present a defense.

                             II. Ineffective Assistance of Counsel

       Mr. Lewis argues he received ineffective assistance of counsel because his

attorney did not ask the court to instruct the jury on the defense of another. A claim of

ineffective assistance of counsel is a mixed question of law and fact and is reviewed de

novo. State v. Sutherby, 165 Wn.2d 870, 883, 204 P.3d 916 (2009). To prevail on a

claim of ineffective assistance of counsel, a defendant must prove ( 1) defense counsel's

representation fell below an objective standard of reasonableness and (2) the deficient

representation prejudiced the defendant. Strickland v. Washington, 466 U.S. 668, 687,

104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. McFarland, 127 Wn.2d 322, 334-35,

899 P.2d 1251 (1995). The claim fails if the defendant fails to satisfy either prong. State

v. Thomas, 109 Wn.2d 222, 226, 743 P.2d 816 (1987). There is a strong presumption that

counsel performed effectively. Strickland, 466 U.S. at 689.

                                             11
No. 32548-2-III
State v. Lewis


       Here, the record shows that Mr. Lewis denied the acts that would have been

justified by the defense. As such, the evidence did not support an instruction on defense

of another, and counsel cannot be held ineffective for not asking the court to instruct the

jury on it. Similarly, Mr. Lewis cannot show that the absence of a jury instruction on

defense of another prejudiced him where he would have been unable to establish a

necessary element of the defense. Mr. Lewis did not receive ineffective assistance of

counsel.

                             III. Statement ofAdditional Grounds

       In a prose statement of additional grounds, Mr. Lewis asserts Mr. Harwood broke

into Ms. Chapman's apartment on the morning of October 19, 2013, and that the State

has police pictures of the break-in. He also states Ms. Chapman told the prosecutor that

Mr. Harwood had broken into her apartment that morning. Mr. Lewis argues that this

evidence was important to his defense and should have been considered.

       "[R]eview of a case on appeal is limited to matters in the record." State v.

Norman, 61 Wn. App. 16, 27, 808 P.2d 1159 (1991). The issue presented by Mr. Lewis

involves factual allegations outside the record on this appeal. His remedy is to seek relief

by personal restraint petition. Id. at 27-28.

       Affirm.




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No. 32548-2-111
State v. Lewis


      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.




WE CONCUR:




Lawrence-Berrey, J.
                                   j




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