                                                                           FILED 

                                                                         NOV. 26, 2013 

                                                                In the Office of the Clerk of Court 

                                                              W A State Court of Appeals, Division III 





           IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                              DIVISION THREE 


STATE OF WASHINGTON,                         )         No. 30879-1-111
                                             )
                        Respondent,          )
                                             )
              v.                             )
                                             )
FLOYD KOONTZ,                                )         UNPUBLISHED OPINION
                                             )
                        Appellant.           )

       BROWN, J. - Floyd Koontz appeals his first degree manslaughter conviction

following a bench trial. He contends the court erred in finding he was the first aggressor

and argues insufficient evidence supports his conviction. In his statement of additional

grounds for review (SAG), Mr. Koontz, pro se, reiterates his appellate counsel's first

aggressor concerns and additionally urges us to reassess witness credibility. We find

no error, and affirm.

                                         FACTS

       Mr. Koontz purchased a vehicle from Pete Flores for $500. Mr. Koontz gave him

$250 and agreed to pay the remaining $250 at a later time. Mr. Koontz was not happy

with the car and felt Mr. Flores had sold him a "lemon." Report of Proceedings (RP) at

291. Mr. Koontz confronted Mr. Flores, who allegedly pulled out a knife and


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State v. Koontz


embarrassed Mr. Koontz. Witnesses heard the two men arguing about the vehicle.

And, one witness thought she heard Mr. Koontz threaten that he was "gonna get a

knife." RP at 560. Mr. Flores ended up kicking Mr. Koontz out and telling him not to

come back unless Mr. Koontz had the money to pay the balance on the vehicle.

       About three months later, Mr. Koontz was at a friend's house where a witness

saw him using a pocket knife to cut and eat sausage. A friend at the house had recently

talked to Mr. Flores, who asked her to remind Mr. Koontz he still owed him money. Mr.

Koontz became upset about this and left. According to the witness, Mr. Koontz stated

on his way out that "he was gonna go kill Pete." RP at 147.

       Mr. Koontz then went to Mr. Flores's house. A friend of Mr. Flores was inside

using the bathroom. When he came outside, the friend saw Mr. Koontz pulling a knife

out of Mr. Flores's neck. The friend did not hear any loud noises coming from outside.

Mr. Flores died a short time later. An investigating officer went to Mr. Koontz's home to

investigate the homicide. He saw Mr. Koontz had been stabbed and called for an

ambulance. Mr. Koontz had a puncture wound in his chest, along with superficial cuts

or stab wounds, and some bleeding.

       The State charged Mr. Koontz with first degree murder. During his bench trial,

Mr. Koontz testified Mr. Flores threatened him and then attacked him with a file and a

butcher knife. Mr. Koontz further testified that as he tried to pull his knife out of his

pocket he tripped and fell, and Mr. Flores fell on top of him. He then stabbed Mr. Flores

and ran away.



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State v. Koontz


       The trial court concluded Mr. Koontz was the aggressor and rejected his self­

defense argument. The court then found him guilty of first degree manslaughter while

armed with a deadly weapon. Mr. Koontz appealed.

                                       ANALYSIS

                                   A. First Aggressor

       The issue is whether the trial court erred in concluding Mr. Koontz was the first

aggressor, and rejecting his self-defense claim. Mr. Koontz argues no evidence shows

he provoked the fight that resulted in Mr. Flores's death. We review conclusions of law

de novo. In re Pers. Restraint of Brett, 142 Wn.2d 868,873-74, 16 P.3d 601 (2001).

       In Washington, a defendant's right to act in self-defense is determined from the

defendant's subjective, reasonable belief that he or she is in imminent harm. State v.

Bradley, 141 Wn.2d 731, 737,10 P.3d 358 (2000). But, to disavow a defendant's claim

of self defense, the State may produce "credible evidence" showing the defendant was

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

      At the outset we note, because this case was decided in a bench trial, the trial

judge had the fact-finding discretion to resolve witness credibility and evidence weight

problems without the necessity of giving jury instructions. The judge is presumed to

know the law. The judge's oral decision indicates a careful consideration of the case

facts as applied to the law of self-defense. The judge carefully explained his reasoning

regarding the credibility issues and indicated his views on the persuasiveness of the

evidence. These are areas that we must defer to because substantial evidence in the



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record supports the trial court's findings of fact and those facts support its conclusions

of law. The judge's rejection of self defense because he found Mr. Koontz was the

aggressor is wholly supported by this record.

       In any event, case law concerning when an aggressor instruction is justified is

instructive. "A court properly submits an aggressor instruction where (1) the jury can

reasonably determine from the evidence that the defendant 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.

Anderson, 144 Wn. App. 85, 89, 180 P.3d 885 (2008) (citing Riley, 137 Wn.2d at 909­

10).

       In Riley, Mr. Riley referred to a rival gang member as a "wanna-be." 137 Wn.2d

at 906. The victim then threatened to shoot Mr. Riley. Mr. Riley pulled a gun on the

victim and demanded his gun. As the victim reached for his gun, Mr. Riley shot him.

The court instructed on first aggressor. Id. at 907. The jury found Mr. Riley guilty of first

degree assault. He appealed his conviction, arguing the trial court erred in giving an

aggressor instruction. The court rejected Mr. Riley's challenge, holding generally where

credible evidence exists from which a jury could reasonably determine that the

defendant provoked the need to act in self defense, an aggressor instruction is

appropriate. Id. at 910.                                                                        I
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       In other words, a defendant whose aggression provokes the contact eliminates

his right of self-defense. State v. Douglas, 128 Wn. App. 555, 562, 116 P.3d 1012



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(2005). Here, the trial court acted within its fact-finding discretion in deciding the

underlying facts in support of its legal conclusions.

         Mr. Koontz and Mr. Flores had a previous encounter where they argued over the

vehicle that Mr. Flores sold to Mr. Koontz. Mr. Flores displayed a knife and told Mr.

Koontz to leave his home and never come back. Nevertheless, upon learning from

mutual friends that Mr. Flores still wanted his money for the vehicle, Mr. Koontz went

back. This time he was carrying a knife (previously displayed while he was eating

sausage) and visibly upset. Mr. Koontz also stated he was going to "kill Pete." RP at

147. While the witness at Mr. Flores's home did not hear a struggle and Mr. Koontz

also had been wounded, Mr. Koontz's actions would still constitute aggression sufficient

to eliminate his right to claim self-defense. Doug/as, 128 Wn. App. at 562. Moreover, a

fact-finder could "reasonably determine ... that the defendant provoked the fight" based

on Mr. Koontz's actions. Anderson, 144 Wn. App. at 89 (citing Riley, 137 Wn.2d at 909­

10). The trial court properly concluded likewise in denying Mr. Koontz's self-defense

claim.

                                   B. Evidence sufficiency

         The issue is whether sufficient evidence exists to support Mr. Koontz's first

degree manslaughter conviction. He contends the State failed to prove he acted

recklessly.

         Evidence is sufficient when, after viewing the evidence in the light most favorable

to the State, any rational trier of fact could have found guilt beyond a reasonable doubt.



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State v. Green, 94 Wn.2d 216, 221,616 P.2d 628 (1980) (quoting Jackson v. Virginia,

443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979». When considering the

sufficiency of the evidence, all reasonable inferences must be 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).

       A person commits first degree manslaughter when he or she "recklessly causes

the death of another person." RCW 9A.32.060(1 )(a). "A person is reckless or acts

recklessly when he or she knows of and disregards a substantial risk that a wrongful act

may occur and his or her disregard of such substantial risk is a gross deviation from

conduct that a reasonable person would exercise in the same situation." RCW

9A.08.010(1)(c). Our Supreme Court clarified in State v. Gamble, 154 Wn.2d 457, 467­

68, 114 P.3d 646 (2005) that to convict a defendant of first degree manslaughter the

State must prove beyond a reasonable doubt that the defendant knew of, and

disregarded, a substantial risk that death may occur.

      Mr. Koontz and Mr. Flores had a prior confrontation resulting in Mr. Flores kicking

Mr. Koontz out of his house and telling him to never come back. Mr. Koontz then heard

from a mutual friend that Mr. Flores wanted to be paid for the vehicle. Mr. Koontz

appeared agitated and left the house of the mutual friend, claiming he was going to kill

Mr. Flores. He was carrying a knife at the time. Based on these facts, and drawing all

reasonable inferences in favor of the State, a reasonable person could conclude Mr.

Koontz knew of, and disregarded, a substantial risk that death may occur. Mr. Koontz



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acted recklessly. Thus, sufficient evidence exists to support his first degree

manslaughter conviction.

                            C. Statement of Additional Grounds

         In his SAG, Mr. Koontz dedicates several pages to citing to the trial transcript and

then providing commentary about the testimony. It appears from these comments he is

challenging the trial court's finding that he was the first aggressor and disagrees with

the trial court's witness credibility determinations.

         We do not readdress Floyd Koontz's first-qggressor concerns because his

appellate counsel's brief adequately addressed that issue, rejected above. See RAP

10.10(a) (providing the purpose of a SAG is to "identify and discuss those matters which

the defendant/appellant believes have not been adequately addressed by the brief filed

by the defendant/appellant's counsel").

         Mr. Koontz is concerned that several of the witnesses committed perjury and

disagrees with the trial court's credibility assessments. Mr. Koontz, however, testified at

trial (RP 647), rebutting the testimony he now questions. We defer to the trier of fact on

issues of conflicting testimony, witness credibility, and the persuasiveness of the

evidence. State v. Camarillo, 115 Wn.2d 60,71,794 P.2d 850 (1990). Moreover, both

circumstantial and direct evidence are equally reliable. State v. De/marler, 94 Wn.2d

634,638,618 P.2d 99 (1980). Accordingly, Mr. Koontz fails to present any reversible

error.




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      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.


                                                Brown, J.

WE CONCUR:




                                                Kulik, J.




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