A defendant in a Washington criminal case is entitled to a self-defense jury instruction if he shows some evidence of self-defense. The use of force by a person “about to be injured” is not unlawful if it is not greater than necessary. RCW 9A.16.020(3). Another statute provides that a homicide is justifiable if the person has “reasonable ground to apprehend” “great personal injury.” RCW 9A.16.050. Case law has held, however, that the “great personal injury” standard applies when the defendant used deadly force, even if no one was killed.
A defendant recently challenged his convictions for second degree assault with firearm enhancements, arguing court erroneously instructed the jury on the “about to be injured” standard instead of the “great personal injury” standard.
According to the appeals court’s opinion, the defendant lived in a mobile home park with a homeowners association. After the defendant informed the homeowner association’s president’s she could not be at another mobile home removing the previous resident’s belongings, the defendant and the association president had an altercation.
The association president and another neighbor went to the defendant’s home and parked about 20 to 25 feet away from the defendant’s porch. The association president knocked on the defendant’s door while the other man waited near the truck. When the defendant answered the door, he told the association president to leave and tried to get him off the porch. During the altercation, the men fell through the porch and the defendant hurt his shoulder.
Another neighbor arrived after hearing the commotion. He told the association president to call the police. The association president went to the truck to get his phone and the defendant went back inside.
The defendant came back outside with a gun. He shot toward the truck. All three of the other men ran. The defendant fired four shots. One misfired and one hit the truck. No one was hit.
The defendant was charged with three counts of first degree assault with firearm enhancements.
The defendant alleged he acted in self-defense. The association president and the neighbor who came with him outweighed the defendant, and they were still there when he came back outside. The association president was known to have a concealed carry permit and the defendant thought he got his gun when he heard the truck door slam.
The defendant testified he held the gun low and tried to raise it and shoot in the air, but was unable to do so because of a shooting pain in his arm. He said he accidentally fired because of the pain. He then shot two more times, and had not been aware of the misfire. He said he only meant to shoot in the air to scare the two men off. He testified he fired again after the first shot because the men stopped running without leaving his line of sight. He was afraid they would come back onto his property.
The court found the defendant was entitled to a self-defense instruction. The instruction stated in relevant part that a person may lawfully use force when he “reasonably believes that he is about to suffer great personal injury . . .” Another instruction provided that “A person is entitled to act on appearances in defending himself, if that person believes in good faith and on reasonable ground that he is in actual danger of great personal injury.” “Great personal injury” was defined in a third instruction as “severe pain and suffering.”
The defendant argued that the standard should be “be injured” instead of “great personal injury.” The trial court found that “great personal injury” was the appropriate standard because the defendant used deadly force.
The defendant was convicted of two counts of second degree assault with firearm enhancements. He appealed.
The defendant argued the trial court erred in using the “great personal injury” standard, contending that standard only applies to homicide cases. The appeals court pointed out the Washington Supreme Court has applied the “great personal injury” standard in a case involving deadly force by the defendant. See State v. Walden. Thus, the appeals court found that the issue before it was whether the defendant had used deadly force.
Deadly force is defined as the intentional use of force by “firearms or any other means reasonably likely to cause death or serious physical injury.” RCW 9A.16.010(2). The defendant argued he did not intend to shoot anyone and did not actually hit anyone. He argued that he had not engaged in an intentional application of force.
The appeals court noted that the application of force must be intentional, but that the definition does not require intent to actually injure a person. The defendant did not dispute that he had intentionally fired the weapon at least twice. The appeals court also found that firing a weapon in a person’s direction is an “application of force.” Finding no error in the trial court instructing the jury on the “great personal injury” standard and rejecting the defendant’s other arguments, the appeals court affirmed the convictions.
A defendant may argue self-defense even if no one was actually injured. Although this defendant was not successful in this case, self-defense is highly fact specific. If you are facing charges arising from your efforts to defend yourself, you need an experienced Washington criminal defense attorney fighting for you. Schedule a consultation with Blair & Kim, PLLC, by calling (206) 622-6562.