IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                                                               CO

STATE OF WASHINGTON,                                  No. 70461-3-1            -a
                                                      (Consolidated with       ~
                    Respondent,                       No. 70660-8-1)

             v.                                       DIVISION ONE             o

DANIEL EARL NEUMAN,                                   UNPUBLISHED OPINloW
                    Appellant.                        FILED: September 15, 2014


      Leach, J. — Daniel Neuman appeals his conviction for second degree

assault. He argues that the trial court violated his right to due process when it

refused to instruct the jury on self-defense. Because the record does not include

any evidence of Neuman's intentional use of any force in self-defense, we affirm.

                                     FACTS


      On August 16, 2012, Rogelio Rosas and his wife, Margarita Antonio, were

driving home in their green Toyota van with their two children, 17-year-old Uri

and 14-year-old Ashlee. Antonio was driving, and Uri was in the front passenger

seat, with the passenger side window rolled down.        As the van neared an

intersection, the light turned yellow, and Antonio braked suddenly to stop.

Neuman, who was driving a maroon Volkswagen Passat, pulled up on the right

side of the van. Both Antonio and Uri noticed that Neuman's car was very close

to the van's passenger side. All four family members heard Neuman yelling, and

Uri heard Neuman say something about "stupid Mexicans." All four saw Neuman
No. 70461-3-1 (consol. with
No. 70660-8-1 / 2



pointing a handgun at Uri. Antonio described Neuman's hand holding the gun as

"stretched out," and both Ashlee and Uri testified that they saw the barrel of the

gun extend out of Neuman's window.         Uri immediately rolled up his window.

After the light turned green, Neuman lowered the gun and pulled his car in front

of the van. He then slammed on his brakes at least twice.


       After a short distance, Neuman turned off into a shopping center.          Uri

called 911 and reported the incident. Police arrested Neuman at the shopping

center and found a handgun in open view in Neuman's car. The State charged

Neuman with one count of second degree assault.

       At trial, Neuman denied pointing the gun at Uri. He testified that while

driving home, he saw a green Toyota van either stopped or driving very slowly in

front of him.   He changed lanes to go around the van, and as he passed it,

honked his horn, "just kind of to say, hey, you know, we're coming, there's people

behind me, you know, maybe turn on your turn signal, turn on your flashers,

something, you know." Neuman testified that the van then came from behind him

"and cut across in front of me, trying to run me into oncoming traffic." He testified

that he was very scared and felt like the driver of the van was trying to kill him.

When the two vehicles stopped side by side at a stoplight, Neuman saw the

passenger roll the passenger side window down. Believing that the occupants of



                                            -2-
No. 70461-3-1 (consol. with
No. 70660-8-1 / 3



the van might try to shoot him, he pulled a handgun out of his backpack and

placed it on his lap. Neuman testified that he had no intention of pointing the gun

at the van's occupants or even letting them see it. He stated, "I wasn't trying to

scare them ... I never intended to [sic] them to see that. It was just merely a

precaution for how they were acting to me." He denied raising the gun off his lap

at any point. He believed that Uri saw the gun only because the van was higher

off the road than his car.


       Neuman submitted proposed jury instructions on self-defense. The trial

court refused to give the instructions. A jury found Neuman guilty as charged.

Neuman appeals.

                                   ANALYSIS


       Citing the due process clause of the Fourteenth Amendment to the United

States Constitution, Neuman contends the trial court violated his right to present

a defense when it declined to instruct the jury on self-defense. We disagree.

       The    Fourteenth     Amendment   guarantees    criminal   defendants    "'a

meaningful opportunity to present a complete defense.'"1      Consistent with this




    1 Holmes v. South Carolina. 547 U.S. 319, 324, 126 S. Ct. 1727, 164 L Ed.
2d 503 (2006) (quoting Crane v. Kentucky, 476 U.S. 683, 690, 106 S. Ct. 2142,
90 L Ed. 2d 636 (1986)).


                                           -3-
No. 70461-3-1 (consol. with
No. 70660-8-1 / 4



right, a defendant is entitled to have the jury instructed on his theory of the case

where the law and evidence support it.2

       As charged here, a person commits second degree assault when he

assaults another with a deadly weapon.3          "[Sjpecific intent either to create

apprehension of bodily harm or to cause bodily harm is an essential element of

assault in the second degree."4

       The law permits a person to act in self-defense when he reasonably

believes that he is about to be injured and uses no more force than necessary to

prevent the offense.5 A trial court must instruct the jury on self-defense if the

record includes "any evidence" the defendant acted in self-defense.6 However, a

defendant is not entitled to a self-defense instruction if he denies any use of any

intentional force.7 "One cannot deny that he struck someone and then claim that

he struck them in self-defense."8




    2 State v. May. 100 Wn. App. 478, 482, 997 P.2d 956 (2000).
    3RCW9A.36.021(1)(c).
    4 State v. Bvrd, 125 Wn.2d 707, 713, 887 P.2d 396 (1995).
    5 RCW 9A. 16.020(3); State v. Kvllo. 166 Wn.2d 856, 863, 215 P.3d 177
(2009).
    6 State v. Adams, 31 Wn. App. 393, 395, 641 P.2d 1207 (1982).
    7 State v. Gogolin, 45 Wn. App. 640, 643-44, 727 P.2d 683 (1986).
    8 State v. Aleshire, 89 Wn.2d 67, 71, 568 P.2d 799 (1977).


                                           -4-
No. 70461-3-1 (consol. with
No. 70660-8-1 / 5



       We review a trial court's refusal to give a self-defense instruction based on

insufficient evidence for abuse of discretion.9 A trial court abuses its discretion if


it exercises it in a manifestly unreasonable manner or bases its decision upon

untenable grounds or untenable reasons.10

       Neuman argues that the trial court should have instructed the jury on self-

defense because he believed the driver of the van was trying to kill him and this

was sufficient evidence that he acted in self-defense. But Neuman specifically

denied pointing the gun at Uri, which was the basis of the assault charge.

Neuman's denial defense precluded a self-defense instruction, and the trial court

did not abuse its discretion in refusing to give one. Furthermore, as the trial court

noted, even without a self-defense instruction, Neuman was able to argue that he

lacked the intent necessary to commit assault because he did not intend the

family to see the gun.     The lack of a self-defense instruction did not violate

Neuman's right to present a defense.

       Citing State v. Callahan.11 State v. Redwine,12 and State v. Fondren,13

Neuman argues that the evidence warrants a self-defense instruction even when



    9 State v. Read. 147 Wn.2d 238, 243, 53 P.3d 26 (2002).
    10 Moreman v. Butcher, 126 Wn.2d 36, 40, 891 P.2d 725 (1995).
    11 87 Wn. App. 925, 943 P.2d 676 (1997).
    12 72 Wn. App. 625, 865 P.2d 552 (1994).
    13 41 Wn. App. 17, 701 P.2d 810 (1985).
No. 70461-3-1 (consol. with
No. 70660-8-1 / 6



a defendant denies the use of force, as long as evidence from any source shows

that the defendant intentionally used force. In Callahan, the defendant shot the

victim after a "road rage" incident. The defendant admitted that he brandished

the gun at the victim out of fear for his safety but denied intentionally shooting the

victim, claiming the gun discharged accidentally.14      In Redwine, the defendant

saw a process server on his property reaching for a zippered, soft-sided case.

Afraid the case contained a weapon, he ran into his house, grabbed a shotgun

and raised it over his head so that the process server would see it.15 In Fondren,

after a fight broke out on the defendant's property, the defendant fetched a

shotgun, hoping that its presence would stop the fight.16 The gun fired, killing a

bystander.17 The defendant denied pointing the gun at anyone, claiming that it

went off accidentally following a struggle for the gun.18

         These cases are distinguishable.    In all three, the defendants purposely

displayed a weapon in order to de-escalate or prevent an altercation.           Each

admitted to an intentional act of force and asserted the lawful use of that force as


a defense.    In contrast, Neuman denied an intentional act of force.     He testified



    14   Callahan, 87 Wn. App. at 928.
    15   Redwine, 72 Wn. App. at 627-28.
    16   Fondren, 41 Wn. App. at 19-20.
    17   Fondren. 41 Wn. App. at 20.
    18   Fondren, 41 Wn. App. at 20.
No. 70461-3-1 (consol. with
No. 70660-8-1 / 7



that he never pointed the gun at anyone in the van and that he did not want the

family even to see the gun because he did not want to frighten them. The record

contains no evidence supporting any claim of the lawful use of force. The trial

court properly refused to instruct the jury on self-defense.

       Affirmed.




WE CONCUR:




  V)-K fc^r^} C^.                        Vci<i^)^(A4y




                                             -7-
