                                                                                                Filed
                                                                                          Washington State
                                                                                          Court of Appeals
                                                                                           Division Two

                                                                                         September 5, 2018
      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II
    STATE OF WASHINGTON,                                             No. 49756-5-II

                                Respondent,

         v.

    JONATHAN ROBERT MAYSONET,                                  UNPUBLISHED OPINION

                                Appellant.

        WORSWICK, J. — A jury found Jonathan Maysonet guilty of second degree assault and

unlawful imprisonment of his wife after a night of drinking. Maysonet appeals, arguing that the

trial court infringed on his right to present a defense when it refused to provide the jury with a

voluntary intoxication instruction. We hold that the trial court erred when it refused to give the

instruction, but we hold that any error was harmless. Consequently, we affirm Maysonet’s

convictions.

                                              FACTS

                                         I. BACKGROUND

        In 2016, Maysonet lived in an apartment in Lakewood with his wife Alexandria1, and

Alexandria’s three-year-old son. Maysonet’s friend, Reniel Williams, lived in the same

apartment complex.




1
  Because Jonathan and Alexandria Maysonet share the same last name, we use Alexandria’s
first name for clarity. We intend no disrespect.
No. 49756-5-II


       On the evening of March 24, 2016, the Maysonets, Williams, Deonte Leshore, and Asa

Lockhart all planned to go to a restaurant and then to a dance club to celebrate Maysonet’s

reenlistment in the military. Maysonet planned to drink to the point of intoxication.

       Around 8:00 p.m. that evening, Maysonet and Alexandria went to Williams’s apartment.

There, Maysonet drank at least two glasses of rum. Maysonet, Alexandria, and friends then went

to a restaurant where Maysonet consumed “two or three” mixed alcoholic drinks. 9 Verbatim

Report of Proceedings (VRP) at 1009.

       Alexandria, Maysonet, and Williams then picked up Lockhart and the group went to a

dance club and met with at least three other friends. At the club, bottles of liquor were brought

to the group’s table for the group to share. The group of eight people shared two large bottles of

liquor. In addition to drinking from the shared bottles, Maysonet also bought drinks from the

bar.

       In the club, Maysonet and Alexandria began to argue. After the club closed, Williams,

Alexandria, and Maysonet walked to Williams’s vehicle. Once in the vehicle, Maysonet urinated

in a cup and placed the cup in the vehicle’s cup holder. Alexandria drove, Maysonet sat in the

front passenger seat, and Williams sat in the back.

       During the drive, the Maysonets continued to argue. The argument became physical

when Alexandria struck Maysonet repeatedly in the face with her hand as she drove. Maysonet

then threw urine from the cup at Alexandria hitting her on the side of the head. Alexandria

stopped the vehicle, got out, went to the passenger side, and continued to strike Maysonet.

Maysonet then threw more urine onto Alexandria.




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No. 49756-5-II


       Alexandria returned to the driver’s seat and drove to the apartment complex, stopping at

the complex’s gate where both she and Maysonet exited the vehicle and walked to the apartment.

Williams then left.

       Once in the Maysonets’ apartment, Maysonet went into the bedroom and laid down on

the bed. Alexandria told Maysonet to leave the apartment, but Maysonet remained. Alexandria

then grabbed an electrical cord and hit Maysonet with it. Alexandria also threw an Xbox game

console at Maysonet, hitting him in the head and face.

       Upon being struck with the game console, Maysonet jumped up and the couple began to

hit each other. Maysonet punched Alexandria at least 20 times in her body and face with both

fists. Alexandria began to bleed heavily, at which time Maysonet stopped punching her and gave

her a T-shirt to stop the bleeding.

       Alexandria walked out of the bedroom and into the living room area, and Maysonet

followed her. Alexandria attempted to strike Maysonet again. At one point during the

altercation, Maysonet stood in front of the apartment door prohibiting Alexandria from leaving.

       Maysonet used his cell phone to call Leshore. Alexandria then ran toward Maysonet and

attempted to hit him again, causing Maysonet to drop his cell phone. Maysonet tripped

Alexandria, causing her to fall to the floor. Maysonet then stood over Alexandria and punched

her in the face. Alexandria asked Maysonet to call 911, but Maysonet remained standing over

Alexandria as she lay on the floor.

       Leshore, Williams, and Lockhart rushed over to the Maysonets’ apartment in response to

Maysonet’s call. Upon arriving at the apartment, the men saw Maysonet standing over a

bloodied Alexandria who was lying on the floor.



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No. 49756-5-II


         Williams took Alexandria to the hospital, and Leshore and Lockhart remained with

Maysonet in the apartment. Maysonet told Leshore that it would be “okay” and Leshore

responded, “[N]aw man, this ain’t going to be okay. You know, you messed up.” 7 VRP at 861.

Leshore then told Maysonet that he would be dishonorably discharged from the military and

Maysonet stated, “[Y]eah it’s bad.” 7 VRP at 861. Maysonet then told Leshore that Alexandria

“could tell them she got beat up at the club.” 7 VRP at 862.

         Shortly after Williams left with Alexandria, police officers arrived and arrested

Maysonet. An officer walked Maysonet to the patrol car and took him to the police station.

         Alexandria sustained injuries to her body and face. The injuries included diffuse swelling

across her face, a cut above her left eyebrow and on her lip, multiple complex nasal bone

fractures, and a fractured septum. The State charged Maysonet with first degree assault, felony

harassment, and unlawful imprisonment.2

                                              II. TRIAL

         At trial, the witnesses testified to the above facts. The witnesses presented conflicting

evidence regarding the number of drinks Maysonet consumed, but the evidence showed that

Maysonet consumed a considerable amount of alcohol. Witnesses testified that Maysonet drank

two glasses of rum at Williams’s apartment, three mixed alcoholic drinks at the restaurant, and

multiple drinks he purchased at the bar in addition to sharing two bottles of alcohol with the

group.



2
  The charges each included an aggravating factor based on the fact that the assault took place
within the sight or sound of Alexandria’s minor son, who was in the apartment during the
assault. The aggravating factor is not an issue in this appeal.



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No. 49756-5-II


        Alexandria testified that Maysonet was “already drunk” before the group left for the

restaurant. Alexandria further testified that by the end of the night she could not understand

what Maysonet was saying and that he was “slurring” and “mixing” things up. 5 VRP at 520.

        Other witnesses testified that Maysonet did not seem “over the top drunk,” was not

“stumbling” after leaving the club, and did not “pass[] out” on the drive home. 6 VRP at 612,

650.

        Williams testified that when he arrived at the Maysonets’ apartment he saw Maysonet

standing over Alexandria and that Maysonet looked “lost” and “out of it.” 6 VRP at 617, 644.

Williams said that Maysonet looked as though he was not fully aware of what he had done.

Leshore testified that Maysonet had a “blank stare” as he was standing over Alexandria, and he

looked as though he had blacked out. 7 VRP at 856. Leshore testified that Maysonet said

unusual things at the apartment, including that “[Alexandria] wanted this to happen. She—she

did this.” 7 VRP at 877.

        Maysonet testified in detail regarding the events of the night. His testimony included

details about the establishments he frequented, who he was with, the times of the events,

conversations he had with Alexandria throughout the night, the altercations with Alexandria, and

the aftermath of the altercation in the Maysonets’ home. He also testified that he vomited twice

that night and that he was stumbling.

        Maysonet testified that during the drive from the club to the apartment complex,

Alexandria was “calling [him] all sorts of names” before she began to punch him. 9 VRP at

1025. He said that he threw the urine on Alexandria “to get her to stop” hitting him. 9 VRP at

1076.



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No. 49756-5-II


       Regarding the assaults in the apartment, Maysonet described the assault as a “mutual fist

fight.” 9 VRP at 1033. He recalled hitting Alexandria 20 times with a closed fist, and he

described his punches as hooks and uppercuts. Maysonet also stated that he hit Alexandria in the

upper body and face and that he knew he was punching her. Maysonet additionally called the

assault a “wild tussle” and said he was “just trying to get her off” of him. 9 VRP at 1138.

Maysonet testified that after the assault in the bedroom, Alexandria tried to assault him again,

and that after she cornered him in the dining room he tripped her to “get her off her feet” and

make her stop hitting him. 9 VRP at 1040.

       Maysonet testified that he had called Leshore to try to help Alexandria, to “have extra

eyes at the house,” to try to “figure out what to do” and to “get her to stop and calm down, stop

hitting” him. 9 VRP at 1105, 1039. Maysonet stated that after Alexandria left for the hospital,

but before police arrived, he went into the bathroom and vomited. Maysonet also testified that

he vomited again in the police station.

       Regarding his consciousness on the night of the incident, Maysonet testified that he was

“[b]lacking out, fading out, drunk, getting to that level. Not there, but getting there, progressing

there.” 9 VRP at 1072. However, Maysonet also stated, “I wasn’t passing out. I wasn’t passing

out. Stumbling, I guess you could say.” 9 VRP at 1061. During direct examination, Maysonet

testified that he had no memory of some periods of time throughout the evening. However,

during cross-examination, Maysonet repudiated the possibility that he could have forgotten

threatening to kill Alexandria, strangling her, or punching her more than what he had testified to.

Maysonet affirmed that he was not falling down and not passing out on the night of the incident.




                                                  6
No. 49756-5-II


Maysonet also affirmed that he had a clear memory of everything that happened that night and

during the incidents, and that his recall was not an issue.

       At the close of the evidence, Maysonet proposed a voluntary intoxication instruction and

the State objected. The court denied Maysonet’s request for the voluntary intoxication

instruction, stating that the “substantial link that’s required by the case law was not ever made

present in this case.” 9 VRP at 1158.

       During closing argument, Maysonet argued:

               I think it’s pretty clear that alcohol was involved in all parties concerned
       here. [Maysonet’s] actions leading up to this, you can infer, he was intoxicated
       based upon his behavior at the club, the amount of alcohol he consumed, the fact
       that he threw a cup of pee in his wife’s face in the car.

10 VRP at 1200-01. Defense counsel also argued that the jury needed to take into consideration

that Maysonet’s behavior was indicative of alcohol consumption and that he therefore had lacked

intent to inflict great bodily harm on Alexandria. But counsel also stated, “I suspect that you will

find that [Maysonet] assaulted [Alexandria]” and that convicting Maysonet of second degree

assault was “appropriate . . . given the damage that was done.” 10 VRP at 1199, 1210.

       During rebuttal argument, the State argued that the court did not instruct the jury that

alcohol was a defense and argued that the only testimony about “alcohol consumption being to

some extreme degree was a little bit from [Alexandria] and a little bit from [Maysonet].” 10

VRP at 1212.

       The jury then found Maysonet guilty of the inferior degree crime of second degree

assault, found him guilty as charged of unlawful imprisonment, and found him not guilty of

felony harassment.




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No. 49756-5-II


                                              ANALYSIS

          Maysonet argues that sufficient evidence supported a voluntary intoxication instruction

and that the trial court’s failure to give the instruction violated his right to present a defense. We

agree that sufficient evidence supported the instruction. However, we hold that the court’s

failure to provide the instruction was harmless.

A.        Legal Principles

          Where, as here, the trial court refuses to give an instruction based on the facts of the case,

we review the refusal for an abuse of discretion. State v. Brightman, 155 Wn.2d 506, 519, 122

P.3d 150 (2005). A trial court abuses its discretion when its decision is manifestly unreasonable

or based on untenable grounds. State v. Arredondo, 188 Wn.2d 244, 265, 394 P.3d 348 (2017).

It is reversible error to refuse to give a proposed jury instruction if the instruction properly states

the law and the evidence supports it. State v. Green, 182 Wn. App. 133, 152, 328 P.3d 988

(2014).

          We review the evidence in the light most favorable to the instruction’s proponent. State

v. Fernandez-Medina, 141 Wn.2d 448, 455-56, 6 P.3d 1150 (2000). And we draw all reasonable

inferences in the light most favorable to the defendant. State v. Douglas, 128 Wn. App. 555,

561-62, 116 P.3d 1012 (2005). Thus, when reviewing the trial court’s decision here, we view all

evidence and inferences in Maysonet’s favor to determine whether the trial court abused its

discretion when it determined that there was insufficient evidence to support the voluntary

intoxication instruction.




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No. 49756-5-II


B.     Voluntary Intoxication Instruction Warranted

       Where a defendant seeks a voluntary intoxication jury instruction, he or she must show

(1) the charged crime has a specific mental state, (2) there is substantial evidence the defendant

was drinking, and (3) evidence that the defendant’s drinking affected his or her ability to form

the required mental state. State v. Everybodytalksabout, 145 Wn.2d 456, 479, 39 P.3d 294

(2002). Evidence of drinking alone is insufficient; there must be substantial evidence of the

alcohol’s effects on the defendant’s mind or body. State v. Gabryschak, 83 Wn. App. 249, 253,

921 P.2d 549 (1996).

       There is conflicting case law regarding the amount of evidence required to support a

voluntary intoxication instruction. See Gabryschak, 83 Wn. App. at 253 (holding that evidence

that defendant was angry, physically violent, and threatening when intoxicated was not sufficient

to establish that he was too intoxicated to form the required intent); State v. Finley, 97 Wn. App.

129, 133, 135, 982 P.2d 681 (1999) (holding instruction not warranted where no evidence existed

showing defendant could not form required intent even where defendant smelled of alcohol, had

bloodshot eyes, slurred speech, had two belligerent confrontations with his girlfriend, other bar

patrons, and police); State v. Rice, 102 Wn.2d 120, 122-23, 683 P.2d 199 (1984) (holding

instruction warranted where defendants drank beer all day, took between two and five

Quaaludes, could not hit ping-pong balls, and one did not feel being struck by a vehicle); State

v. Washington, 36 Wn. App. 792, 792, 677 P.2d 786 (1984) (holding instruction warranted where

evidence showed the defendant drank a substantial amount of alcohol, was involved in an

automobile accident, and made numerous attempts to strike an officer (see 34 Wn. App. at 411-

12 (1983)).



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No. 49756-5-II


          We agree that intoxication is not an “all-or-nothing proposition.” Gabryschak, 83 Wn.

App. at 253. A person can be intoxicated and still be able to form the requisite mental state, or

he can be so intoxicated as to be unconscious. State v. Coates, 107 Wn.2d 882, 891, 735 P.2d 64

(1987).

          The issue here is whether sufficient evidence existed to show that Maysonet’s

intoxication affected his ability to form the requisite mental state to commit the crimes of second

degree assault and unlawful imprisonment.3 Both of these crimes contain a specific mental state.

Intent is an element of both first and second degree assault, and knowingly is an element of

unlawful imprisonment. A person acts with intent or intentionally when acting with the

objective or purpose to accomplish a result that constitutes a crime. A person knows or acts

knowingly or with knowledge with respect to a fact, circumstance, or result when he or she is




3
    RCW 9A.36.011(1) provides:
                A person is guilty of assault in the first degree if he or she, with intent to
       inflict great bodily harm:
                ....
                (c) Assaults another and inflicts great bodily harm.

    (Emphasis added.)

    RCW 9A.36.021(1) provides:
               (a) Intentionally assaults another and thereby recklessly inflicts substantial
       bodily harm.

    RCW 9A.40.040 (1) provides:
              A person is guilty of unlawful imprisonment if he or she knowingly restrains
       another person.

    (Emphasis added.)



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No. 49756-5-II


aware of that fact, circumstance, or result. State v. Allen, 182 Wn.2d 364, 372, 341 P.3d 268

(2015).

          The evidence in this case is conflicting. But in determining whether Maysonet is entitled

to this instruction, we examine all evidence and inferences from that evidence in his favor.

Douglas, 128 Wn. App. at 561-62.

          Here, Williams testified that when he saw Maysonet after arriving at the apartment to

help, Maysonet looked “lost” and “out of it” and as though he was “not even here.” 6 VRP at

617. Leshore also testified that Maysonet looked as though he had “blacked out” and had a

“blank stare” as he stood over Alexandria. 7 VRP at 856; 875. Alexandria testified that

Maysonet was “slurring” and “mixing” things up by the end of the night. 5 VRP at 519.

Maysonet also testified that he did not “fully understand the situation” or “how—why it even got

to that point.” 9 VRP 1116. He also testified that he vomited twice and was stumbling and

“[b]lacking out, fading out, drunk, getting to that level.” 9 VRP at 1072.

          The record reflects substantial evidence of Maysonet’s drinking and level of intoxication.

And there is ample evidence of the effect of intoxication on both his mind and body: his

appearance of blacking out, looking lost, vomiting, and slurring speech. Viewing the evidence in

the light most favorable to Maysonet, we hold that the trial court erred when it denied

Maysonet’s voluntary intoxication instruction.

          Maysonet further argues that the trial court’s denial of the instruction led to a violation of

his Sixth Amendment right to present a defense. As discussed above, the trial court erred in

denying Maysonet’s request for a voluntary intoxication instruction. Moreover, when Maysonet

tried to argue that he lacked specific intent because of his intoxication, the State reminded the



                                                    11
No. 49756-5-II


jury that the court did not instruct the jury that alcohol was a defense. Thus, trial court also

violated Maysonet’s right to present the defense of voluntary intoxication.

       Accordingly, we hold that the trial court erred by denying Maysonet’s voluntary

intoxication instruction and erred by violating Maysonet’s right to present a defense. However,

as shown below, the trial court’s error was harmless.

C.     Harmless Error

       The State argues that if the trial court erred by refusing to give a voluntary intoxication

instruction, such error was harmless. We agree.

       Under the constitutional harmless error standard, an error in jury instructions is harmless

if within the entire context of the record, it is harmless beyond a reasonable doubt. State v.

Grimes, 165 Wn. App. 172, 187, 267 P.3d 454 (2011). A constitutional error does not require

reversal if, beyond a reasonable doubt, the untainted evidence is so overwhelming that a

reasonable jury would have reached the same result in the absence of the error. State v.

Saunders, 120 Wn. App. 800, 813, 86 P.3d 232 (2004). We apply the constitutional standard to

this case because the trial court violated Maysonet’s right to present a defense.

       The overwhelming evidence in this case makes clear that the jury would have reached the

same result even if the trial court had provided a voluntary intoxication instruction. Maysonet

testified at length about how he acted with intent and knowledge on the night of the incident.

       Maysonet testified that he decided to throw urine on Alexandria during the car ride home

to make her stop hitting him. Maysonet also testified that he hit Alexandria in the bedroom to

“get her off” of him and similarly tripped her to end her attack of him. 9 VRP at 1138.

Maysonet further testified that he threw hooks and uppercuts at Alexandria and described the



                                                 12
No. 49756-5-II


type of punches he used on her. Maysonet also testified that he called his friend in the middle of

the altercation with the intent to “have extra eyes at the house” and to “get [Alexandria] to calm

down and stop hitting” him. 9 VRP 11/15/16 at 1105, 1039. Maysonet’s entire testimony was

extremely detailed, and it clearly and precisely described details of the evening including details

of his intent for his actions.

        Moreover, Maysonet explicitly stated that he did not actually “pass out.” He did not

testify that he experienced some failure of his mental acuity on the night of the incident. Rather,

Maysonet testified that he remembered assaulting Alexandria and remembered the events of the

evening with clarity, despite his drinking. He also denied that his consumption of alcohol

affected his memory regarding whether he threatened or strangled Alexandria.

        Additionally, Maysonet presented no evidence that his alcohol consumption affected his

ability to act knowingly with respect to his unlawful imprisonment of Alexandria. Maysonet

knew how many times and with what force he hit Alexandria, and he also knew that he seriously

injured her. Maysonet also had the awareness and knowledge to call his friend for help during

the incident. Although he denied that he refused to let Alexandria leave the apartment, Maysonet

presented no evidence that he lacked the ability to knowingly restrain Alexandria.

        Further, on the night of the incident, Maysonet acknowledged that the situation “was

bad” and recognized that he faced the possibility of being dishonorably discharged. Maysonet’s

understanding of his actions was also exhibited by his suggesting that Alexandria make up a lie

about how she became injured. This uncontroverted evidence clearly shows that Maysonet

understood the consequences of his actions and also shows that he was not so affected by alcohol

that he was unable to form the requisite mental state to commit the crimes.



                                                13
No. 49756-5-II


       Given his testimony, and considering all the evidence within the entire context of the

record, the evidence of Maysonet’s intent to assault and his knowledge of unlawful

imprisonment is so overwhelming that no reasonable jury would have reached a different verdict,

even if provided with a voluntary intoxication instruction. Accordingly, any error in failing to

instruct the jury on voluntary intoxication was harmless beyond a reasonable doubt.

                                          CONCLUSION

       Because substantial evidence supports the voluntary intoxication instruction, the trial

court erred when it refused to give the instruction. The trial court also erred by violating

Maysonet’s right to present a defense. However, the trial court’s errors were harmless beyond a

reasonable doubt. Accordingly, we affirm Maysonet’s convictions.

       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, J.
 We concur:



 Maxa, C.J.




 Lee, J.




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