                                                                                 I-[ LED
                                                                           COURT OF APPEAL.
                                                                               DIVISIOM II

                                                                          2013 AUG -6 AM 9: 15

    IN THE COURT OF APPEALS OF THE STATE OF' XT1419NT
                                           W §-    &"
                                                                           PY
                                           DIVISION II                            D PUTY


STATE OF WASHINGTON,                                                No. 42726 5 II
                                                                              - -


                                  Respondent,



KATHY ELAINE GLEN,                                            UNPUBLISHED OPINION




       JOHANSON, J. — Kathy        Elaine Glen appeals her jury conviction for third degree assault.

Glen argues that (1) evidence at trial was insufficient to prove that she acted with criminal
                    the

negligence and that she committed the assault using an instrument or thing likely to produce

bodily harm, and (2)the trial court erred in refusing to provide the jury with a fourth degree
assault instruction as an inferior degree offense. Because there was sufficient evidence to prove

that Glen acted with criminal negligence and because the trial court properly declined to instruct

the jury on a lesser degree offense, we affirm.

                                                FACTS


                                            I. BACKGROUND


       On a warm day in August 2010, Steasha Grant drove to the grocery store in Westport,

Washington. Grant was accompanied by her two young cousins, her friend Ashton Hickerson,

and Grant's dog. Grant, Hickerson, and Grant's cousins went into the store for approximately
             '
five minutes, leaving the   dog   in Grant's vehicle.
No. 42726 5 II
          - -



        While Grant was in the store, Glen had opened the driver's side door of Grant's vehicle.

Glen   was   standing beside Grant's vehicle    and confronted her when Grant         approached.   Glen


accused Grant of abusing her dog by leaving it alone inside Grant's vehicle. A verbal altercation

between the two women ensued.


        After putting the two young children into the vehicle, Grant went to the driver's side and

found Glen with her body positioned in such a way that it was impossible to fully open that door.

Grant opened the door partially and began to "slide in"to the driver's seat when, according to

Grant, Glen took the door and " slammed           it   right   on" Grant's head.    Verbatim Report of

Proceedings (VRP)at 40. The force of the impact severed a part of Grant's ear, and attempts to

reattach it were unsuccessful.


        Susan Smith, another store patron who witnessed the incident, described seeing Glen

yelling at Grant, taking hold of Grant's door, and "intensely shaking it." at 17. Smith then
                                                                         VRP
witnessed the door    shutting, but   she could not tell if it struck Grant.       Smith noticed that the

vehicle's door was moving because Glen "grab[ ed] hold of the door before [ Grant] could
                                            b

actually get it shut."VRP at 31. Smith witnessed Grant get out of the vehicle holding her head

with blood running down her face.

        Glen's version of the event differs in that she testified that Grant had forcefully hit her in

the knees with the door upon entering the driver's side. In order to avoid being hit by the door a

second time, Glen pushed against the door with her knee, causing her foot to slip and resulting in

her "scrambling," "
                going backwards,"and "doing the splits."
                                                       VRP at 96. Glen claims that she

does not recall what happened in the few seconds after she slipped nor is she aware how she
could have done      anything   to   cause   the door to shut      on   Grant.   According to Glen, this



                                                       K
No. 42726 5 II
          - -



momentary loss of balance also caused her sandal to come off and it was only after she retrieved

her sandal from the front of Grant's vehicle that she saw Grant through the windshield, bleeding.

                                           II. PROCEDURE


          The State charged Glen with third degree assault under RCW 9A. 6.At the
                                                                     d).
                                                                     031(
                                                                        1
                                                                        3 )(
close of the evidence the trial court heard argument as to whether a lesser degree instruction or a

lesser -included instruction for fourth degree assault was proper. Glen conceded that she was not

entitled to a lesser -included instruction, but she maintained that the court should give a lesser

degree instruction. The parties disagreed only about whether the evidence raised an inference

that Glen committed only the lesser offense.

          Considering the facts and Glen's theory of the case, the trial court was not persuaded that

a fourth degree assault instruction was warranted because there was no evidence that Glen

committed only the lesser offense. Instead, because Glen primarily contended that any force she

may have used on the car door was to prevent it from hitting her, the trial court decided to
instruct the jury on self -
                          defense. The jury found Glen guilty as charged. Glen appeals.
                                             ANALYSIS


          Glen argues that the evidence at trial was insufficient to prove that she acted with

criminal negligence and that she used an instrument or thing likely to produce bodily harm. Glen
contends further that the trial court erred in failing to give the requested lesser degree offense

instruction. We disagree.

1
     legislature amended RCW 9A. 6.twice in 2011. LAWS OF 2011, ch. 238, § l;
    The                       031 3                                                   LAWS OF
2011, ch. 336, § 359. These amendments are not relevant here; thus, we cite the current version
of the statute.




                                                   3
No. 42726 5 II
          - -



                                    I. SUFFICIENCY OF THE EVIDENCE


                                         A. Standard of Review


         Glen contends that the evidence against her was insufficient to prove that she acted with

criminal      negligence. " Evidence is sufficient to support a finding of guilt if, after viewing the

evidence in the light most favorable to the State, a rational trier of fact could find the essential

elements of the crime beyond a reasonable doubt."State v. Rose, 175 Wn. d 10, 14, 282 P. d
                                                                      2                3

1087 (2012).A claim of insufficient evidence admits the truth of the State's evidence and all
            "
inferences that reasonably can be drawn from that evidence." State v. Caton, 174 Wn. d 239,
                                                                                   2

241, 273 P. d 980 (2012).We consider circumstantial and direct evidence to be equally reliable.
          3
State   v.                   2                         1980). And we defer to the trier of fact on
             Delmarter, 94 Wn. d 634, 638, 618 P. d 99 (
                                                2


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

State v. Thomas, 150 Wn. d 821, 874 75,83 P. d 970 (2004).
                       2            -      3

                                         B. Criminal Negligence

             Glen argues that the State failed to prove that she acted with criminal negligence in

causing Grant's injuries. At the close of the evidence, the trial court provided the jury with

instruction 7, the to-
                     convict instruction for third degree assault under RCW 9A. 6.
                                                                            d),
                                                                            031(
                                                                               1)(
                                                                               3

which read in part:

                    To convict the defendant of the crime of assault in the third degree, each
             of the following elements of the crime must be proved beyond a reasonable doubt:
             1) That on or about August 16, 2010, the defendant caused bodily harm to
                    Steasha N. Grant;
             2)     That the physical injury was caused by a weapon or other instrument or
                    thing likely to produce bodily harm;
             3)     That the defendant acted with criminal negligence; and
             4)     That this act occurred in the State of Washington.




                                                     M
No. 42726 5 II
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Clerk's Papers (CP)at 21 (emphasis added).Additionally, the trial court provided the jury with

instruction 9,which defined criminal negligence, stating:

            A person is criminally negligent or acts with criminal negligence when he or
         she fails to be aware of a substantial risk that a wrongful act may occur and this
         failure constitutes a gross deviation from the standard of care that a reasonable
         person would exercise in the same situation.

CP at 21.


         Glen argues that reversal is required because the jury convicted her based on evidence

that showed    an   intentional act rather than   a   criminally negligent   act.   Because the trial court


instructed the jury as to the definition of criminal negligence but not as to that of intent, Glen

contends that the law of the case doctrine therefore required the jury to find that she acted with

criminal negligence only. Even assuming that the State was constrained by the law of the case

doctrine to prove criminal negligence as Glen claims, her argument is still without merit because

the evidence is sufficient to support a finding of criminal negligence.

         The question is whether, when viewed in a light most favorable to the State, the evidence

suggests_ Glen_
        that  failed to be aware of a substantial risk that a wrongful act could occur as a
 result of her actions and if so, whether that failure constituted a gross deviation from the conduct

 that a reasonable person would have exercised in that situation. Here, considering the evidence

 in the light most favorable to the State, the evidence proves that Glen failed to be aware of a


 2
     RCW 9A. 8.allows proof of a higher mental state to also establish the presence of a
         010(
            2
            0 )
 lower mental state. See also State v. Ridgley, 141 Wn. App. 771, 782, 174 P. d 105 (2007).The
                                                                            3
 legislature has expressly stated that when criminal negligence establishes an element of an
 offense, such an element is also established if a person acts intentionally, knowingly, or
 recklessly. RCW 9A. 8.Therefore, if the State proved that Glen acted with the intent to
                  010( 2
                       0 ).
 cause harm, such proof would typically be sufficient to establish that she also acted negligently.


                                                        5
No. 42726 5 II
          - -



substantial risk that harm to Grant could occur and that Glen's conduct constituted such a gross

deviation.


          Glen initiated an altercation with a stranger in a grocery store parking lot because she did

not agree   with Grant's treatment of her pet.   She opened the door of a vehicle that did not belong

to her.    She obstructed Grant's access to her vehicle when Grant was trying to remove herself

from the situation. Smith saw Glen yelling at Grant and "ntensely shaking"the driver's door as
                                                        i

Grant attempted to enter the vehicle. VRP at 17. At some point during this exchange, while

parts of Grant's body were in between the car door and the inside of her vehicle, Glen's actions

caused the door to close on Grant's head, resulting in substantial, irreparable bodily harm.

          Glen therefore failed to be aware that her actions created a substantial risk that harm to

Grant could occur because she should have known that grabbing and intensely shaking

someone's car door as that person tries to enter the vehicle creates a high risk that the person

entering the vehicle could be injured. When viewed in a light most favorable to the State, the

evidence shows that Glen engaged in conduct constituting a gross deviation from that which a

reasonable person would have exercised under similar circumstances because she prevented
Grant from leaving the scene and she turned a relatively harmless verbal dispute into a violent

physical altercation. The evidence was sufficient to demonstrate that Glen acted with criminal
negligence.

          Additionally, Glen's assertions appear to confuse intentional or volitional acts (the actus

reus of the crime) with the negligent mental state (mens rea) required for a third degree assault

conviction. She argues that the State proved an intentional act because Grant testified that she

thought Glen was trying to harm her and because Grant saw Glen "`
                                                               lift her hand up and slam "'


                                                    2
No. 42726 5 II
          - -



the   car   door. Br. of   Appellant   at 15 ( quoting   VRP at   59). But whether Glen did or did not

physically intend to shut the car door on Grant's head does not preclude a finding that she was

criminally negligent in causing Grant's injuries. See State v. Foster, 91 Wn. d 466, 470, 589
                                                                            2

P. d 789 (1979);
 2             State v. Moreno, 132 Wn. App. 663, 666, 132 P. d 1137 (2006);
                                                            3              State v.
Warren, 63 Wn. App. 477, 478, 820 P. d 65 (1991),
                                   2            review denied, 118 Wn. d 1030 (1992).
                                                                     2

Glen's arguments accordingly fail.

                        C. Weapon or Instrument Likely to Produce Bodily Harm

            Glen next argues that the State failed to establish that the car door was a weapon or object

likely to produce bodily harm. Again, we disagree.

            Washington's third degree assault statute provides, in part:

            1) A person is guilty' of assault in the third degree if he or she, under
            circumstances not amounting to assault in the first or second degree:

                           d)With criminal negligence, causes bodily harm to another person
            by means of a weapon or other instrument or thing likely to produce bodily harm.
RCW 9A. 6. The statute does not contain a definition of other instrument or thing likely to
    031.
      3                                                 "

produce bodily harm." But our Supreme Court recently undertook a thorough examination of
this language and interpreted the provision in question in State v. Marohl, 170 Wn. d 691, 246
                                                                                  2

P. d 177 (2010).
 3

            In Marohl, two casino patrons became involved in a verbal dispute that quickly turned

physical and violent. Marohl, 170 Wn. d at 695. During the course of this struggle one of the
                                    2
men caused the other to fall and impact the casino floor, rendering the victim unconscious and

injuring his face. Marohl, 170 Wn. d at 696. The issue on appeal was whether the casino floor
                                 2
constituted a weapon or other instrument or thing likely to produce bodily harm under RCW


                                                         7
No. 42726 5 II
          - -




03 1 )( Marohl, 170 Wn. d at 697. The court concluded that the legislature intended
9A. 6. (1d).
  3                   2

to limit the class of instruments or things that give rise to a charge of third degree assault under

subsection (d)such that only assaults perpetrated with an object likely to produce harm by its

nature   or   by    circumstances fall within the subsection's     purview. Marohl, 170 Wn. d at 699.
                                                                                          2

Thus, the object does not have to be inherently weapon like as Glen claims. Br. of Appellant at
                                                        -

20. Instead, the object can be in the nature of a weapon or it can be used as a weapon in order to

constitute                        other instrument        thing likely   to   produce bodily harm."   RCW
              a "   weapon   or                      or




d).
031(
9A. 6.
   1)(
   3

         The Marohl court concluded that the plain language of RCW 9A. 6. not
                                                                   d)
                                                                   031(
                                                                      1)(
                                                                      3  did

include the casino floor within the meaning of "
                                               instrument or thing,"
                                                                   because, " nder these
                                                                            u

circumstances, the casino floor was not similar to a weapon, nor was it "ikely to produce bodily
                                                                        l

harm."Marohl, 170 Wn. d at 700. In so holding, the court compared similar cases from other
                    2

jurisdictions. Marohl, 170 Wn. d at 701 02 (citing People v. Galvin, 65 N. .761, 481
                             2          -                               2d
                                                                         Y

2d
N. .565, 492 N. d.25 ( 1985) pavement is dangerous instrument where defendant
 E           S.
              2
              Y              (

repeatedly struck victims head against it); v. Reed, 101 Or. App. 277, 279, 790 P. d 551
                                          State                                  2

sidewalk is dangerous instrument where victim's head was struck against it),
                                                                          review denied, 310

Or. 195 (1990);
              State v. Montano, 126 N. . 609, 610, 973 P. d 861 (1998)brick wall can be
                                     M                  2              (

dangerous weapon),cent. denied, 972 P. d 351 (1999).The Marohl court distinguished its facts
                                     2
from these cases because Marohl did not proactively use the floor to cause injury. Marohl, 170

Wn. d at 703. Such a distinction is important to the present case because it indicates that objects
  2

not traditionally or naturally considered "weapon[s]"
                                                   can constitute "instrument[s] thing[s]
                                                                               or

likely to produce       harm"given the   right   circumstances.
No. 42726 5 II
          - -



       Here, Glen, whether she intended to do so or not, used Grant's car door as a weapon and

it was likely to produce bodily harm in that instance. This case would be analogous to Marohl

had Glen and Grant been in a physical altercation during which Grant tripped and fell into the car

door as an unintended consequence of the fight. If that were the case, it would not be consistent

to say that the car door was an instrument or thing by which bodily harm was caused. But that is

not what   happened   here.   Instead, the evidence, viewed in a light most favorable to the State,

established that Glen " ook hold of the door,"
                      t                      VRP at 16, was "intensely shaking it," at 17,
                                                                                 VRP

and "used her hand to slam the car door on [Grant's]
                                                   head."VRP at 59. In this circumstance,

the evidence was sufficient for the jury to conclude that the car door was an instrument or thing

likely to cause bodily harm because it was used proactively to cause serious injury to Grant.
                                  II. LESSER DEGREE INSTRUCTION


       Last, Glen argues that the trial court erred in refusing to instruct the jury on the lesser

degree crime of fourth degree assault. Specifically, Glen claims that the trial court focused only
on Glen's theory of the case, when it should have considered the .evidence from both parties that

would have supported the requested instruction.

        Generally, criminal defendants are entitled to notice of the charges against them and may

be convicted only of those crimes charged in the information. State v. Tamalini, 134 Wn. d 725,
                                                                                       2

731, 953 P. d 450 (1998).But RCW 10. 1.provides that a criminal defendant may also be
          2                      003
                                   6

convicted of a crime that is an inferior degree of the crime charged. Tamalini, 134 Wn. 2d at

731. The statute reads:


        Upon an indictment or information for an offense consisting of different degrees,
        the jury may find the defendant not guilty of the degree charged in the indictment
        or information, and guilty of any degree inferior thereto, or of an attempt to
        commit the offense.



                                                   7
No. 42726 5 II
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RCW 10. 1.
    003.
      6


       An instruction for an inferior degree offense is properly administered when:

       1) statutes for both the charged offense and the proposed inferior degree
            the
       offense `proscribe but one offense';2) information charges an offense that is
                                             ( the
       divided into degrees, and the proposed offense is an inferior degree of the charged
       offense; and (3) there is evidence that the defendant committed only the inferior
       offense."


State v. Fernandez-
                  Medina, 141 Wn. d 448, 454, 6 P. d 1150 (2000)quoting State v. Peterson,
                                2                3               (

133 Wn. d 885, 891, 948 P. d 381 (1997)).
      2                  2              Elements (1) (2)are unquestionably satisfied
                                                    and

here. The statutes   proscribe only   one   offense, the   crime of assault.   The crime of assault is


divided into degrees, and fourth degree assault is an inferior degree of the charged third degree

assault. The parties disagree only about whether there was evidence that Glen committed only

fourth degree assault. Therefore, resolution of this issue requires an analysis of only the third

element, also known as the factual component. Fernandez-
                                                       Medina, 141 Wn. d at 454.
                                                                     2

       A trial court's refusal to give instructions to a jury, if based on a factual dispute, is

reviewed for abuse of discretion. State v. Lucky, 128 Wn. d 727, 731, 912 P. d 483 (1996),
                                                        2                  2

overruled on other grounds by State v. Berlin, 133 Wn. d 541, 544, 947 P. d 700 (1997).A trial'
                                                     2                  2
court abuses its discretion only when its decision is manifestly unreasonable or based on

untenable grounds or reasons. State v. Kaiser, 161 Wn. App. 705, 726, 254 P. d 850 (2011).
                                                                           3

       When determining if the evidence at trial was sufficient to support the giving of an

instruction, we view the supporting evidence in the light most favorable to the party that

requested the instruction. Fernandez-
                                    Medina, 141 Wn. d at 455. A requested jury instruction
                                                  2

for an inferior degree offense should be administered "` the evidence would permit a jury to
                                                       if



                                                   10
No. 42726 5 II
          - -




rationally find a defendant guilty of the lesser offense and acquit him of the greater. "'

Fernandez-
         Medina, 141 Wn. d at 456 (quoting State v. Warden, 133 Wn. d 559, 563, 947 P. d
                       2                                          2                  2

708 (1997)). must consider all evidence that is presented when we are deciding whether or
           We

not an instruction should have been given, but the evidence must affirmatively establish the

defendant's theory of the caseit is not enough that the jury might disbelieve the evidence
                              —

pointing to guilt. Fernandez-
                            Medina, 141 Wn. d at 456.
                                          2

          In Fernandez-
                      Medina, our Supreme Court reversed the defendant's conviction for first

degree assault because it. that the trial court should have, but failed to give a second
                         determined

degree                                  Medina, 141 Wn. d at 456.
          assault instruction. Fernandez-             2                     The court explained that

when all of the evidence was considered, including expert testimony from both sides, a jury

could have rationally concluded that "clicking sounds" made by a gun were not necessarily

caused by pulling the trigger. Fernandez-
                                        Medina, 141 Wn. d at 466. The court reasoned that
                                                      2

the lesser degree instruction was appropriate because the jury could have reached the additional

conclusion that Fernandez -Medina only put the victim " n apprehension of harm"which would
                                                      i

have been consistent with Fernandez -Medina's theory that he was guilty of only the inferior

degree offense..Fernandez-
                         Medina, 141 Wn. d at 457.
                                       2

           The present   case     is    distinguishable                 Medina.
                                                          from Fernandez-         Glen requested an

instruction which would have informed the jury that fourth degree assault is committed if,under .

circumstances not amounting to assault in the first, second, or third degree, or custodial assault,
he   or   she assaults another.        RCW 9A. 6. But unlike Fernandez-
                                           041(
                                              1
                                              3 ).                    Medina, there was no

evidence or testimony tending to establish that Glen committed only fourth degree assault and

not third degree assault.



                                                          11
No. 42726 5 II
          - -



       The State's witnesses testified that Glen used Grant's car door to cause Grant's injuries.

Glen claimed and argued at trial that her use of force was lawful. hen she pushed the door
                                                                 w

against Grant with her knee to prevent it from striking her and that she was not sure how Grant

sustained her injuries because she lost her balance and had to divert her attention to prevent

herself from falling.

       Therefore, the jury could have either concluded that Glen caused Grant harm by

slamming Grant's car door (even if Glen did not intend to injure Grant),
                                                                       which would amount to

criminal negligence, or it could have believed that the injuries occurred as a result of an exercise

of self -
        defense, or by accident. Glen's stated theory of the case is completely inconsistent with

any degree of assault. To justify giving a fourth degree assault instruction based on these facts,

the jury would have had to conclude that Glen assaulted Grant but that she did not use Grant's
car door as an instrument to cause bodily harm. No reasonable jury could have reached that

conclusion based on the evidence that was available.


       Again, unlike Fernandez-
                              Medina, Glen offered no evidence that she committed fourth

degree assault as her testimony addressed use of force for self -
                                                                defense and an accidental slip and

fall. Had the jury believed Glen's version of the events, it could only have concluded that no

assault occurred at all. Accordingly, even when the evidence is considered favorably towards

Glen, it does not support an instruction for fourth degree assault and regardless, such an

instruction would be wholly inconsistent with Glen's theory of the case. Because of the facts

and Glen's theory of the case, the trial judge declined to give a fourth degree assault instruction

and instead offered a self -
                           defense instruction. It cannot be said that this decision was manifestly

unreasonable or based on untenable grounds.



                                                 12
No. 42726 5 II
          - -



         We affirm.


         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

040,
2.6.it is so ordered.
 0




                                                                  Jo anson. J.
We




     d           Worswic`k, J.

  f6A, J.J - (
     P.
     hy,'       MCC
                                    S.




                                                13
