 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                     DIVISION ONE

 In the Matter of the Personal                   No. 77553-7-1
 Restraint of:


 BRIAN JORDAN MINNIEAR,

                                                 UNPUBLISHED OPINION

                     Petitioner.                 FILED:


       ANDRUS, J. — Brian Minniear filed a personal restraint petition challenging
his jury conviction for second degree assault while armed with a deadly weapon.

Because we conclude that Minniear's attorney provided ineffective assistance by

failing to propose a revived self-defense instruction, we grant Minniear's petition

and remand for a new trial.

                                     FACTS

       In 2013, Jeffrey Casselman and Daniel Otto were hired to remodel a rental

property in Snohomish, Washington. Behind the property were several vacant lots

that were only accessible via the property's driveway. The property owner told

Casselman "nobody was supposed to be up there." However, at some point,

Casselman noticed "a motorhome and debris up there."

       On September 17, 2013, Casselman parked his truck in the property's

driveway and began unloading construction materials. Casselman saw a man,
No. 77553-7-1/2


later identified as Minniear, coming down the driveway from behind the property.

Casselman walked up the driveway and saw a silver Volkswagen hatchback

behind the property. Casselman asked what Minniear was doing on the property

and Minniear said that he "was helping somebody take a generator out of the

motorhome."

      As to what happened next, Minniear's and Casselman's testimony differs.

According to Casselman, Minniear told him "to move [his] god-damn truck."

Casselman told Minniear that the property owner was going to call 911 and began

walking back down the driveway. Minniear yelled "Better move that god-damn

fucking truck right now or I'm going to shoot you." Casselman turned around and

saw that Minniear had a gun in his hand, pointed down at the ground. Casselman

went "right up...in his face" and stated "That's the dumbest thing you could have

ever done."

       Casselman further testified that Minniear got into the Volkswagen and

attempted to use it to push Casselman's truck out of the way. When he was

unsuccessful, Minniear got into Casselman's truck to move it. Minniear managed

to shift the truck into neutral and it began to roll forward. Concerned that Minniear

was trying to steal the truck, Casselman and Otto ran over and attempted to pull

Minniear out of the truck.     Minniear pulled out the gun again, pointed it at

Casselman and said "I'm going to fucking shoot you." Minniear pulled the trigger

and Casselman "heard this little click" but the gun did not go off. Minniear swung

the gun at Casselman, gouging Casselman's arm.


                                                              ,
                                             2
No. 77553-7-1/3


      Minniear put the gun in his pocket and ran back to the Volkswagen, with

Casselman and Otto in pursuit. As Minniear attempted to shut the driver's side

door, Casselman and Otto grabbed the window, "pulling on it to keep him from

going anywhere." Minniear pulled out the gun again. He pulled back the slide and

Casselman saw a bullet eject from the top of the gun. Minniear pointed the gun at

Casselman, stated that he was going to shoot Casselman, and pulled the trigger,

but again the gun did not fire. Minniear managed to drive around Casselman's

truck and drove away.

      According to Minniear, he politely asked Casselman to move his truck but

Casselman told Minniear he couldn't leave and then laughed at him. Minniear

denied trying to push Casselman's truck with the Volkswagen but admitted

entering Casselman's truck to roll it forward so that he could drive around it.

According to Minniear, the gun was in the glovebox of the Volkswagen during this

time. Minniear testified that after he moved the truck, he walked back towards the

Volkswagen. Casselman and Otto chased after him, attempted to drag him out of

the car, and then began beating him on the back with what he believed was a

baseball bat. Minniear claimed that he only displayed the gun at this point to scare

them off so he could leave.

       Police officers responding to the property owner's 911 call pulled Minniear

over and arrested him. After Minniear stepped out of the car, an officer noticed a

.380 caliber bullet on the ground outside of the driver's side door. The bullet was

clean and undamaged and appeared to have recently fallen on the ground.

Officers found a .380 caliber pistol in the glove box. Minniear's car also contained


                                            3
No. 77553-7-1/4


three tennis balls with dog bones printed on them. Minniear testified that he did

not own a dog and that the balls were not in the Volkswagen prior to the incident.

The jury was read a stipulation that the property owner "owned a dog that played

with tennis balls sometimes kept in a plastic tube container."

      The State charged Minniear with two counts of second degree assault, both

with Casselman as the victim. At trial, the State argued that the basis for count I

was Minniear pointing the gun and pulling the trigger while inside Casselman's

truck. The State argued that the basis for count 11 was Minniear pointing the gun

and pulling the trigger while inside the Volkswagen.

       Minniear's defense at trial was self-defense. The trial court gave the jury

Minniear's proposed pattern self-defense instruction:

      It is a defense to a charge of Assault in the Second Degree that the
      force used, attempted to be used, or offered to be used was lawful
      as defined in this instruction.

      The use, attempt to use, or offer to use force upon or toward the
      person of another is lawful when used, attempted, or offered by a
      person who reasonably believes that he is about to be injured, and
      when the force is not more than is necessary.


      The person using or offering to use the force may employ such force
      and means as a reasonably prudent person would use under the
      same or similar conditions as they appeared to the person, taking
      into consideration all of the facts and circumstances known to the
      person at the time of and prior to the incident.
                                                                          M
      The State has the burden of proving beyond a reasonable doubt that
      the force used, attempted, or offered to be used by the defendant
      was not lawful. If you find that the State has not proved the absence




                                            4
No. 77553-7-1/5

       of this defense beyond a reasonable doubt, it will be your duty to
       return a verdict of not guilty.111

       The State requested, and the trial court gave, the pattern "first aggressor"

instruction:

       No person may, by any intentional act reasonably likely to provoke a
       belligerent response, create a necessity for acting in self-defense
       and thereupon use, offer, or attempt 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.[2]
Defense counsel did not object to the instruction.

       In closing argument, the State argued that once Minniear got into

Casselman's truck, he could not legally claim self-defense for anything that

happened afterwards.

       I have to prove that it's not self-defense. However, we don't get there
       at all because of Instruction No. 12. Instruction 12 is what is
       commonly referred to as the first aggressor instruction. What does
       that mean? It means that it applies for exactly this type of situation.

       You don't get to create the need for somebody for yourself to act in
       self-defense and then claim it. A burglar can't break into your home
       and then you try and beat them up or assault them because they are
       breaking in your home, and then they defend themselves and it's
       self-defense. I had to; they were beating me up. You created it.

       He broke in the victim's truck. Right then it is no different whether or
       not the victim should have moved his truck. That has no relevance
       in that situation. At no point was the defendant given permission or
       allowed under the law to get in the victim's truck. Right then, any
       claim of self-defense is nullable. If you believe that he got in the
       victim's truck, which he admitted to, and you believe that he then
       therefore created the need, created a belligerent response on the

1 See 11 Washington Practice: Washington Pattern Jury Instructions: Criminal (WPIC)
17.02, at 196(2d ed. 1994).
2See 11 Washington Practice: Washington Pattern Jury Instructions: Criminal (WPIC)
16.04, at 182(2d ed. 1994).

                                             5
No. 77553-7-1/6

       part of Casselman, which he did have, there is no reason to
     , deliberate on the self-defense because he created it. You can't
       create the situation.


       The defendant was the first aggressor when he got into that truck,
       which means he cannot avail himself of the self-defense instruction.

(Emphasis added).

       A few hours after they began deliberating, the jury submitted a question

regarding the application of the first aggressor instruction to each of the two

charged counts:

       Per instruction No. 12 [the first aggressor instruction], can an
       intentional act, i.e., the first aggressor action apply to both charges,
       or, are we required to identify separate first aggressive acts for each
       charge?
The trial court responded to the jury's question as follows:

       The jury is permitted, but not required, to find that an intentional act
       or set of acts of the defendant occurring at a single point in time is/are
       sufficient to apply instruction No. 12 to either or to both counts of
       assault in the second degree. The jury is instructed to re-read
       Instruction No. 3.[3]
Instruction No. 3 directed the jury to consider each count separately.

       Approximately twenty minutes later, the jury asked another question:

       If we determine that instruction no. 12 applies, does the term "self-
       defense" in no. 12 refer to instruction no. 11 [the general self-defense
       instruction] which simply uses the term "defense"? I.e., if no. 12
       applies then no. 11 cannot apply?

The trial court answered:

       The term defense, as used in Instruction No. 11, refers to self-
       defense, as used in Instruction No. 12. During your deliberations,
       you must consider the instructions as a whole.4

3 Defense counsel successfully argued for the insertion of the phrase "but not required"
and the reference to Instruction No. 3.
4 Defense counsel did not object to this instruction.



                                              6
No. 77553-7-1/7


       The jury failed to reach a unanimous verdict on count I but convicted

Minniear on count II. The jury also returned a special verdict that Minniear was

armed with a firearm. This court affirmed Minniear's convictions on direct appeal.

                                    DISCUSSION

       To successfully challenge a judgment and sentence by means of a personal

restraint petition, a petitioner must establish either(1)actual and substantial prejudice

arising from constitutional error, or (2) nonconstitutional error that inherently results

in a "complete miscarriage ofjustice." In re Pers. Restraint of Cook, 114 Wn.2d 802,

813, 792 P.2d 506 (1990). If a personal restraint petitioner makes a successful

ineffective assistance of counsel claim, he or she has necessarily met the burden

to show actual and substantial prejudice. In re Pers. Restraint of Crace, 174 Wn.2d

835, 846-47, 280 P.3d 1102 (2012).

       Under the sixth amendment to the United States Constitution and article I,

section 22 of the Washington State Constitution, a defendant is guaranteed the

right to effective assistance of counsel in criminal proceedings. Strickland v.

Washington, 466 U.S. 668, 684-86, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). To

establish ineffective assistance of counsel, a petitioner must demonstrate both

(1) that his attorney's representation was deficient, i.e., that it fell below an

objective standard of reasonableness, and (2) resulting prejudice, i.e., a

reasonable probability that, but for counsel's deficient performance, the result of

the proceeding would have been different. State v. McFarland, 127 Wn.2d 322,

334-35, 899 P.2d 1251 (1995). A reasonable probability is "a probability sufficient

to undermine confidence in the outcome." Strickland, 466 U.S. at 694. The


                                               7
No. 77553-7-1/8


reasonableness of counsel's performance is to be evaluated from counsel's

perspective at the time of the alleged error and in light of all the circumstances."

In re Pers. Restraint of Davis, 152 Wn.2d 647, 673, 101 P.3d 1 (2004). There is a

strong    presumption that a defendant received effective representation.

McFarland, 127 Wn.2d at 336.

         Minniear contends that once the trial court gave the State's first aggressor

instruction, defense counsel was ineffective for failing to propose a revived self-

defense instruction. We agree.

         A first aggressor loses the right to act in self-defense. State v. Dennison,

115 Wn.2d 609, 617, 801 P.2d 193(1990). However, if an aggressor in good faith

withdraws "from the combat at such a time and in such a manner as to have clearly

apprised his adversary that he in good faith was desisting, or intended to desist,

from further aggressive action," the right to act in self-defense is revived.

Dennison, 115 Wn.2d at 617(quoting State v. Craig, 82 Wn.2d 777, 783, 514 P.2d

151 (1973)) (internal quotations omitted).        A defendant is entitled to a jury

instruction supporting his or her theory of the case only where the theory is

supported by substantial evidence in the record. State v. Griffith, 91 Wn.2d 572,

574, 589 P.2d 799, 802(1979).

         Here, such an instruction would have been supported by the evidence.

Throughout the entire confrontation it was apparent that Minniear's intention was

to leave the property. After Minniear moved Casselman's truck enough to be able

to use the driveway, Minniear's actions — including putting the gun back in his




                                              8
7                                                                                           ,


    No. 77553-7-1/9


    pocket and attempting to start his own car and drive away — clearly communicated

    to Casselman his intention to withdraw from further conflict.

          To determine if defense counsel was ineffective for failing to propose the

    instruction, we first examine whether the failure constituted               deficient

    representation. We conclude that it does. Our conclusion is supported by the

    declaration of Minniear's trial attorney, who admits that there was no tactical

    reason not to request such an instruction.

          Prior to the State's closing argument, I did not really anticipate the
          importance the first aggressor instruction would take on in this case.
          I was not particularly familiar with the law disfavoring such an
          instruction or with the law concerning the revival of the right to self-
          defense in the case of a first aggressor who withdraws from the
          conflict. I did not agree with the State's argument that once
          Mr. Minniear got into Jeffrey Casselman's truck without permission
          he could not have acted in self-defense and there was no need to
          deliberate on self-defense but Idid not object or request any curative
          instruction based on this argument. But going into closing
          arguments, I did not know the State would push this line of reasoning
          so I had not really researched any bases for such an objection or
          curative instruction(s) and I was not aware of the same. I did not
          make any strategic or tactical decision not to object or request a
          curative instruction based on these arguments even though it was
          apparent these arguments were harmful to the defense.

          Based on the jury's question, I was concerned that the jury might
          misapply the first aggressor instruction, especially to count II, and I
          tried to articulate this concern to the Court. Although I did my best, I
          did not have time to thoroughly research the issue and I did not cite
          any caselaw or propose any particular language to inform the jury
          the first aggressor instruction should not apply, even in the case of a
          first aggressor, if the defendant withdrew from the combat at such a
          time and in such a manner as to have clearly apprised his adversary
          that he in good faith was desisting or intended to desist. I did not
          make any strategic or tactical decision not to do so and I can see that
          such an instruction would clearly have been of benefit to the defense.
No. 77553-7-1/10


          In support of his claim, Minniear also attaches a declaration from an

experienced criminal defense attorney and former prosecutor who opined that

defense counsel's performance was deficient.

         As soon as [defense counsel] knew the trial court intended to give
         the first aggressor instruction, he should have requested an
         instruction regarding withdrawal and revival of self-defense.
         Washington case law recognizes the right of self-defense may be
         revived even in the case of a first aggressor if the aggressor in good
         faith withdraws from the combat at such a time and place that clearly
         apprises his adversary that he in good faith was desisting or intended
         to desist. This law is hardly obscure or esoteric. Rather, it is plainly
         referenced in the readily available commentary to WPIC 16.04.5 Had
         [defense counsel] requested this instruction, he would have been
         able to argue to the jury that no matter their conclusions about the
         events leading up to Count 11, even Mr. Casselman agreed that
         before this assault allegedly took place Mr. Minniear was not
         brandishing any weapon and was trying hard to withdraw from the
         confrontation altogether by leaving the scene.

         Absent this instruction, the state was allowed to argue incorrectly
         stating the law and relieving them of their burden of proving each
         element of the offense beyond a reasonable doubt by arguing the
         jury did not even need to consider the issue of self-defense at any
         point after Mr. Minniear entered Mr. Casselman's truck without
         permission (no matter the subsequent circumstances). Especially
         under these facts and after the state proposed and the trial court
         gave the first aggressor instruction as well as after the state made
         this argument, I do believe [defense counsel] fell well below
         prevailing professional norms in failing to propose an instruction
         explaining withdrawal can revive self-defense even in the case of a
         first aggressor.

5   The comment to WPIC 16.04 provides, in relevant part, as follows:
         The court in State v. Dennison, 115 Wn.2d 609, 617, 801 P.2d 193, 198
         (1990), noted that the right of self-defense may be revived if the aggressor
         in good faith withdraws from the combat "at such a time and in such a
          manner as to have clearly apprised his adversary that he in good faith was
         desisting, or intended to desist." Accord, State v. Wilson, 26 Wn.2d 468,
         174 P.2d 553(1946); Annot., Withdrawal, After Provocation of Conflict, as
         Reviving Right of Self-defense, 55 A.L.R.3d 1000. See also the section on
         withdrawal in the Comment to WPIC 16.02(Justifiable Homicide—Defense
         of Self and Others).


                                                 10
No. 77553-7-1/11


         The State argues that because Minniear's theory of the case was that

Casselman was the initial aggressor, a revived self-defense instruction would have

been inconsistent with this theory because it would have constituted an admission

that Minniear was the one who committed an aggressive act.6 But a defendant is

entitled to present inconsistent defenses. State v. Fernandez—Medina, 141 Wn.2d

448,6 P.3d 1150(2000). While the decision not to present potentially inconsistent

defenses is a tactical one, defense counsel admitted that the decision was not

made for strategic reasons but rather due to an unfamiliarity with the law.

         Minniear also meets his burden to establish that his defense was prejudiced

by the failure to request the instruction. In closing argument, the State argued that

Minniear could not claim self-defense as to either of the assaults once he

committed an aggressive act — in this case, trying to move Casselman's truck. This

was an incomplete statement of the law because Minniear was entitled to claim

self-defense if he later withdrew in good faith from the conflict. The jury's questions

suggest confusion as to whether they could find Minniear had acted in self-defense

once he had committed an aggressive act, regardless of any subsequent

withdrawal.        A revived self-defense instruction would               have accurately

communicated the law and given rise to a reasonable probability that the jury would

have acquitted Minniear of count II.


6   In closing argument, defense counsel stated:
          You know, the primary aggressor, what started this? What started this
          was Jeff Casselman blocking that driveway, then refusing to move it,
          whether it's civil or criminal.

         I contend to you that Mr. Casselman was the initial aggressor.


                                                11
No. 77553-7-1/12


      Because we conclude that defense counsel was ineffective for failing to

propose a revived self-defense instruction, we grant Minniear's personal restraint

petition. We vacate his judgment and sentence and remand for a new tria1.7




WE CONCUR:




7 Because we grant Minniear's   petition on these grounds, we decline to address Minniear's
other ineffective assistance of counsel   claims.


                                               12
