                                                                                                Filed
                                                                                          Washington State
                                                                                          Court of Appeals
                                                                                           Division Two

                                                                                            March 5, 2019
      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                          DIVISION II
    STATE OF WASHINGTON,                                              No. 50415-4-II

                                Respondent,

         v.

    ROBERT DESHAWN GROTT,                                      UNPUBLISHED OPINION

                                Appellant.

        WORSWICK, J. — A jury found Robert Grott guilty of second degree murder of Julian

Thomas and seven counts of first degree assault. Grott appeals, arguing that the trial court erred

by giving a first aggressor jury instruction and that the State failed to present sufficient evidence

of the crimes.1

        We hold that that the trial court improperly instructed the jury on first aggressor and that

sufficient evidence supported the convictions; we do not address Grott’s remaining arguments.

We reverse and remand.

                                               FACTS

A.      BACKGROUND

        Grott enlisted in the Marines and deployed to Afghanistan. In 2012, after leaving the

Marines with an honorable discharge, he returned home to California. Grott’s family reported

that he had changed after being in Afghanistan.



1
 In his brief and his Statement of Additional Grounds (SAG) for Review, Grott makes multiple
additional arguments concerning evidentiary rulings, jury instructions, prosecutorial misconduct
and ineffective assistance of counsel.
No. 50415-4-II


       Sometime in 2015, after experiencing traumatic experiences in California, Grott moved

to Tacoma and lived with his brother and two cousins. Grott’s cousins were friends with

Thomas, and Thomas would spend time at Grott’s house. In August 2015, Grott’s handgun was

stolen. Grott believed that Thomas had stolen it.

       October 31, 2015, Grott had an argument, which ended with Thomas shooting Grott’s

front door, nearly hitting Grott in the head. Thomas continued threatening to kill Grott in the

subsequent months. After the October 2015 shooting, Grott experienced a significant increase in

anxiety and vigilance, often inspecting his house for potential threats. He also started carrying a

gun. Grott became isolated and paranoid. Grott confided in a family member that he was

hurting and afraid of someone, and that his life was in danger.

B.     THE SHOOTING

       On February 1, 2016, Grott rode his skateboard past an AM/PM gas station. There were

several people in the parking lot and in the convenience store associated with the gas station.

From the street, Grott saw Thomas parked in the AM/PM parking lot. Thomas was in his car

talking to Petra Smith. Grott began firing his weapon toward Thomas, and continued to fire as

he walked closer. Grott fired 48 rounds, killing Thomas who was facing Grott at the time of the

shooting. In the course of the shooting, bullets from Grott’s gun shattered the window of the

AM/PM store. Thomas died at the scene; no one else was injured. A firearm was found under

Thomas’s body.

       After the shooting, Grott returned to his home. Shortly after, Grott’s uncle informed him

that Grott was being threatened, and Grott and his brother drove to California where Grott turned

himself in.



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No. 50415-4-II


       The State charged Grott with first degree murder of Thomas, and seven counts of first

degree assault of the bystanders of the shooting, namely Smith, Tannisha McCollum, Jeanette

Basher, Robin Lyons, Shawn Chargualaf, Debora Green, and Karmanita Vaca.

C.     TRIAL

       At trial, Grott presented two affirmative defenses: diminished capacity based on PTSD

(post-traumatic stress syndrome) and self-defense. Grott presented Dr. Kevin Moore to testify as

an expert in support of his diminished capacity defense.

       Dr. Moore is a psychiatrist, retired from the military. He had several years’ experience

treating marines and combat veterans. Dr. Moore examined Grott, who made statements about

the incident to Dr. Moore. Dr. Moore diagnosed Grott with PTSD.

       1. Testimony

       Dr. Moore testified that he and Grott discussed Grott’s childhood, military service,

experiences after the military, issues with Thomas, the incident on October 31, 2015, the events

between October 31, 2015 and February 1, 2016, and the incident on February 1. Dr. Moore

testified that PTSD would likely result in someone over-perceiving or focusing on potential

threats in the environment, affecting how they interpret others’ actions. When asked about

Grott’s understanding of the risk of harm on February 1, Dr. Moore testified, “I don’t think that

Mr. Grott felt that he had any other alternative but to defend himself.” 15 Verbatim Report of

Proceedings (VRP) at 1964. Dr. Moore also testified that Grott’s ability to premeditate was

impaired.




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No. 50415-4-II


        Grott did not testify. The parties presented over thirty witnesses, who testified about the

shooting, the subsequent investigation, and Grott’s history. Except for Vaca, each alleged victim

of first degree assault testified.

        Grott’s cousin testified that he had spoken with Thomas, who said, “When he sees

[Grott], it’s either [Grott] or me.” 14 VRP at 1842. Grott’s cousin testified that before the

shooting, he had conveyed Thomas’s threat to Grott. He also testified that he took Thomas’s

threat seriously because he knew Thomas’s reputation, and that “[Thomas] is gang-affiliated, and

I know exactly what [he] does.” 14 VRP at 1842. Grott’s cousin reported being “very afraid”

for Grott.

        2. Jury Instructions

        The jury was instructed on first degree murder and the lesser included offense of second

degree murder. The trial court also instructed the jury on assault, including the common law

definition of assault.

        Grott requested that the jury be instructed on self-defense; the State objected. The trial

court ruled that Grott was entitled to self-defense instructions, and instructed the jury on self-

defense related to the murder and assault charges.

        The State proposed, and the trial court gave, a first aggressor instruction. The trial court

instructed the jury that:

        No person may, by any intentional act reasonably likely to provoke a belligerent
        response, create a necessity for acting in self-defense and thereupon 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 to murder, manslaughter or assault.

CP at 1035. Grott did not object to this instruction.



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No. 50415-4-II


       The jury found Grott guilty of second degree murder and seven counts of first degree

assault while armed with a firearm. Grott appeals.

                                             ANALYSIS

A. FIRST AGGRESSOR INSTRUCTION

       Grott argues that the trial court erred by giving a first aggressor instruction. The State

argues that the first aggressor instruction was proper because Grott fired the first shot and that it

was not required to demonstrate intentional provoking conduct prior to the shooting. We agree

with Grott.

       1. Issue Preserved for Review

       As an initial matter, Grott failed to object to the first aggressor instruction in the trial

court. To raise this issue for the first time on appeal, Grott must show that giving the instruction

constitutes a manifest error affecting a constitutional right. RAP 2.5(a)(3). Grott has made this

showing.

       Due process requires the State to prove every element of the charged offense beyond a

reasonable doubt. State v. Johnson, 188 Wn.2d 742, 750, 399 P.3d 507 (2017). Once raised by a

defendant, the absence of self-defense becomes an element of the crime that State has the burden

of proving beyond a reasonable doubt. State v. Kyllo, 166 Wn.2d 856, 862, 215 P.3d 177 (2009);

State v. Walden, 131 Wn.2d 469, 473, 932 P.2d 1237 (1997). A first aggressor instruction

informs the jury that if it determined Grott was the first aggressor, then his self-defense claim is

unavailable and the jury does not have to consider whether the State has proved beyond a

reasonable doubt that the defendant did not act in self-defense. State v. Bea, 162 Wn. App. 570,




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No. 50415-4-II


575-76, 254 P.3d 948, review denied, 173 Wn.2d 1003 (2011). Therefore, the first aggressor

instruction implicates a defendant’s constitutional rights.

       We presume that an error of constitutional magnitude is prejudicial, and the State bears

the burden of proving that the error was harmless. State v. Guloy, 104 Wn.2d 412, 425, 705 P.2d

1182 (1985). The error is harmless if this court is convinced beyond a reasonable doubt that any

reasonable jury would have reached the same result in the absence of the error. Guloy, 104

Wn.2d at 425. Because this claim is of constitutional magnitude, we consider it for the first time

on appeal.

       2. Legal Principles

       We review de novo whether sufficient evidence supports the first aggressor instruction.

Bea, 162 Wn. App. 577. We determine whether the evidence at trial was sufficient to support

the giving of an instruction, viewing the evidence in the light most favorable to the party that

requested the instruction. Bea, 162 Wn. App. at 577.

       One who provokes a fight cannot invoke the right of self-defense. Bea, 162 Wn. App. at

575. A first aggressor instruction directs the jury to determine whether the defendant’s acts

precipitated a confrontation with the victim. State v. Riley, 137 Wn.2d 904, 909-10, 976 P.2d

624 (1999). Because a first aggressor instruction potentially removes self-defense from the

jury’s consideration, and relieves the State of its burden of proving that a defendant did not act in

self-defense, the instruction should be given only sparingly. Bea, 162 Wn. App. at 575-76.

       A first aggressor instruction is appropriate when the record demonstrates credible

evidence to allow a jury to reasonably determine that the defendant provoked the need to act in

self-defense. Riley, 137 Wn.2d at 909-10. The first provoking act must be intentional, and must



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No. 50415-4-II


be an act that a “‘jury could reasonably assume would provoke a belligerent response by the

victim.’” Bea, 162 Wn. App. at 577 (internal quotation marks omitted) (quoting State v. Wasson,

54 Wn. App. 156, 159, 772 P.2d 1039 (1989)). The provoking act “must be related to the

eventual assault as to which self-defense is claimed.” Bea, 162 Wn. App. at 577. The provoking

act cannot be mere words alone, and it cannot be the actual charged incident to which self-

defense is claimed. State v. Sullivan, 196 Wn. App. 277, 290, 383 P.3d 574 (2016), review

denied, 187 Wn.2d 1023, 390 P.3d 332 (2017); Bea, 162 Wn. App. at 577. It is improper to give

a first aggressor instruction where there is no evidence that the defendant “initiated any act

toward [the victim] until the final assault.” Wasson, 54 Wn. App. at 159.

       3. No Evidence of Provoking Act

       Grott was charged with first degree murder, and seven counts of first degree assault. He

asserted that he was acting in self-defense. The trial court ruled that Grott was entitled to a jury

instruction on self-defense. In order to issue a first aggressor jury instruction, the State was

required to produce some evidence that Grott made an intentional act—prior to the shooting—

that a jury could reasonably assume would provoke a belligerent response from the victim. See

Sullivan, 196 Wn. App. at 290; Bea, 162 Wn. App. at 577; Wasson, 54 Wn. App. at 159. There

is no evidence in the record of an intentional act that preceded the shooting, which a jury could

reasonably assume would provoke a belligerent response.

       The State argues that the first aggressor instruction was proper because Grott fired the

first shot. This argument fails because the State concedes that the first shot is part of the actual

charged incident to which self-defense is claimed. To support a first aggressor instruction the

evidence would have to show that Grott made an intentional act before the shooting that a jury



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No. 50415-4-II


could reasonably assume would provoke a belligerent response. Bea, 162 Wn. App. at 577. The

evidence makes no such showing.

       The State also argues that it was not required to demonstrate intentional provoking

conduct prior to the shooting. But this contention is unsupported by the law. As discussed

above, the provoking act cannot be the charged assault. Sullivan, 196 Wn. App. at 290; Bea, 162

Wn. App. at 577; Wasson, 54 Wn. App. at 159.

       Because there is no evidence that Grott made an intentional act before the shooting that a

jury could reasonably assume would provoke a belligerent response, we hold that the first

aggressor instruction was improper. And because the instruction relieved the State of its burden

to prove that Grott did not act in self-defense beyond a reasonable doubt, we presume that the

error was prejudicial. Thus, the State has the burden to demonstrate that the improper instruction

was harmless beyond a reasonable doubt. State v. Imokawa, 4 Wn. App.2d 545, 559, 422 P.3d

502 (2018); Guloy, 104 Wn.2d at 425.

       4. Error Not Harmless Beyond a Reasonable Doubt

       The State’s only argument that any error was harmless is that the trial court should not

have allowed self-defense in this case. Because the defense itself was improper, the argument

goes, the negation of the defense was harmless. We disagree.

       Grott’s self-defense theory was that he perceived an imminent threat to his life when he

encountered Thomas unexpectedly. His perception was based on his knowledge of Thomas and

his prior experiences with Thomas and were influenced by PTSD. The trial court, after

considering all the evidence in the light most favorable to Grott, ruled that Grott could argue

self-defense. The State did not cross-appeal on this issue.



                                                 8
No. 50415-4-II


       The State has not demonstrated that the improper instruction was harmless beyond a

reasonable doubt. The first aggressor instruction allowed the jury to improperly find that Grott

was the first aggressor based on the very act of shooting, which was the crime for which he

claimed self-defense. And by doing so, the first aggressor instruction relieved the State of

proving beyond a reasonable doubt that Grott was not acting in self-defense. Under the record

here, we cannot determine that the error was harmless beyond a reasonable doubt. Accordingly,

we reverse Grott’s convictions.

B.     SUFFICIENT EVIDENCE OF SECOND DEGREE MURDER AND ASSAULT2

       Grott argues that the State failed to present sufficient evidence of second degree murder

and first degree assault.3 Specifically, Grott argues that the State failed to present sufficient

evidence of the actus reus of the crimes. Grott’s argument fails.

       Due process requires the State to prove every element of the charged crimes beyond a

reasonable doubt. Johnson, 188 Wn.2d at 750. We review sufficiency of evidence claims for

whether, when viewing the evidence in the light most favorable to the State, any rational trier of

fact could have found the essential elements of the charged crime beyond a reasonable doubt.

Johnson, 188 Wn.2d at 750-51. In a challenge to the sufficiency of the evidence, the defendant

admits the truth of the State’s evidence and all reasonable inferences that can be drawn from it.


2
 Although we reverse Grott’s convictions, we address sufficiency of the evidence because if the
evidence is insufficient to support the convictions, the double jeopardy clause prohibits a retrial.
State v. Wright, 165 Wn.2d 783, 792, 203 P.3d 1027 (2009).
3
  Grott’s assignments of error also include: “The state failed to disprove beyond a reasonable
doubt, self-defense” and “[t]he state failed to disprove beyond a reasonable doubt, justifiable
homicide.” Br. of Appellant at 1 (Assignments of Error 5, 6). Grott does not offer argument
regarding either assignment of error, and therefore we do not address them. RAP 10.3(a)(6);
State v. Mason, 170 Wn. App. 375, 384, 285 P.3d 154 (2012).


                                                  9
No. 50415-4-II


State v. Thomas, 150 Wn.2d 821, 874, 83 P.3d 970 (2004). We also “defer to the trier of fact on

issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence.”

Thomas, 150 Wn.2d at 874-75.

       1. The Actus Reus Is Not an Element

       Grott argues that the State failed to prove the actus reus of both second degree murder

and first degree assault. Grott invites this court to hold, contrary to established law, that the State

is required to prove the actus reus as an element of the crime. Grott’s claim fails under State v.

Deer, 175 Wn.2d 725, 287 P.3d 539 (2012). Deer held that the State is not required to prove the

actus reus or a volitional act as an element of the crime. Deer, 175 Wn.2d at 738, 741.

       Grott relies on State v. Eaton, 168 Wn.2d 476, 229 P.3d 704 (2010). But Eaton is

distinguishable. Eaton held that a defendant could not be subject to a sentencing enhancement

under RCW 9.94A.533(5) for possession of a controlled substance inside of a jail when the

police officers had transported Eaton involuntarily to the jail. Eaton, 168 Wn.2d at 479, 487.

“The concern in Eaton was the absurdity of interpreting [the sentencing statute] to impose

liability for a circumstance within the State’s control, rather than the defendant’s.” Deer, 175

Wn.2d at 739. Eaton does not hold that the State is required to prove the actus reus as an

element of the crime, and does not support Grott’s argument. See Deer, 175 Wn.2d at 738

(rejecting the Court of Appeals’ reliance on Eaton to hold that the State was required to disprove

the voluntariness of the act). Because the State is not required to prove a volitional act as an

element of the crime, Grott’s argument fails.




                                                  10
No. 50415-4-II


         2. Grott’s Alternative Argument That the Evidence Supports Only Second Degree
            Assault

         Grott argues in the alternative that the evidence does not support first degree assault.

Specifically, he “submits that the facts in this case represent more closely assault in the second

degree.” Br. of Appellant at 48. Grott reasons that the facts in his case are similar to the facts in

State v. Smith, 159 Wn.2d 778, 154 P.3d 873 (2007), where the jury found the defendant guilty

of second degree assault, not first degree assault. But here, the jury found Grott guilty of first

degree assault. The jury’s verdict in Smith does not render the jury’s verdict here unsupported

by sufficient evidence.

         Grott also asserts that the State “did not present sufficient evidence to establish beyond a

reasonable doubt that Vaca experienced reasonable fear.”4 Br. of Appellant at 49. Grott’s only

argument in this regard appears to be that Vaca did not testify.

         Debora Green, the store manager at the time of the shooting, testified that Vaca worked at

the AM/PM and was behind the cash register at the time of the shooting. The State presented

video footage from the AM/PM security cameras.5 The State contends that the video footage

demonstrates Vaca’s apprehension of harm. The State describes the video as showing Vaca

“taking all types of actions consistent with concern for her safety, including ducking to the

ground, taking cover. At one point . . . she runs to the back of the store to try and protect

herself.” 14 VRP at 1742. Grott does not provide meaningful argument, authority, or citation to


4
    Count VIII was first degree assault of Karmenita Vaca.
5
 Exhibit 137 is a video included in this court’s record, but because of the proprietary software
needed to view it, the video was unviewable in the form submitted. Thus, we rely on the parties’
descriptions.



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No. 50415-4-II


the record to support his argument that the State failed to prove that Vaca experienced fear.

Taking the evidence in the light most favorable to the State, the jury could have found that Vaca

experienced reasonable fear.

          We hold that the improper first aggressor instruction relieved the State of its burden to

prove beyond a reasonable doubt that Grott did not act in self-defense, and we reverse his

convictions and remand for further proceedings consistent with this opinion.6

          A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW

2.06.040, it is so ordered.



                                                                       Worswick, P.J.
    We concur:



    Melnick, J.




    Sutton, J.




6
    Because we reverse on other grounds, we do not address Grott’s remaining arguments.


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