The State of Washington, Respondent, v. Cynthia Carol Bender-Loyd, Appellant.

 

No. 60249-7-I

 

COURT OF APPEALS OF WASHINGTON, DIVISION ONE

 

2008 Wash. App. LEXIS 2607

 

 

November 10, 2008, Filed

 

COUNSEL: Counsel for Appellant(s): Nielsen Broman Koch PLLC, Attorney at Law, Seattle, WA.

 

Counsel for Respondent(s): Prosecuting Atty King County, King Co Pros/App Unit Supervisor, Seattle, WA; Erin S Norgaard, King Co Prosecuting Attorneys Office, Seattle, WA.

 

JUDGES:  Dwyer, A.C.J., Agid, J., Schindler, CJ.

 

OPINION

¶1 Per Curiam — Cynthia Bender-Loyd appeals her conviction for malicious mischief in the first degree. Bender-Loyd damaged Suzette Goshen’s car by throwing a ceramic lawn statue and a vase at it. At trial, Bender-Loyd claimed that she did so in self-defense and sought and obtained jury instructions to that effect. The State, in turn, sought and obtained a jury instruction specifying that self-defense does not apply when the defendant is the person who initiated the conflict leading to the charged offense (a first “aggressor” instruction). On appeal, Bender-Loyd contends that the aggressor instruction should not have been given and that her attorney was unconstitutionally ineffective for failing to object to it. She further contends that her attorney was unconstitutionally ineffective for failing to offer a countervailing jury instruction specifying that Bender-Loyd could not be the aggressor if Goshen re-started the conflict after Bender-Loyd retreated (a “revival” instruction). Finding no error with respect to the instructions given, and that Bender-Loyd’s attorney was not ineffective, we affirm.

 

I

¶2 Goshen and Bender-Loyd were long-time friends. Goshen invited Bender-Loyd to go swimming at Goshen’s condominium community swimming pool. Goshen dropped Bender-Loyd near the pool area, but had to run an errand. Bender-Loyd walked barefoot to the gate of the pool. It was a hot day and the asphalt was burning Bender-Loyd’s feet. Bender-Loyd noticed a painted speed bump nearby and went to stand on it to get her feet off the hot blacktop.

¶3 Christine Ginett, Goshen’s neighbor, was in the pool area at the time. Ginett had seen a man painting the speed bump earlier that day; when she saw Bender-Loyd standing on the speed bump, she said, “excuse me, can you please get off that paint, it’s wet.” Bender-Loyd responded by saying, “the paint’s not wet, and I think I’ll do whatever I want to do.” Ginett responded, “if you want to be an idiot and stand in wet paint.” Bender-Loyd replied by saying something like, “excuse me, B[itch], I don’t need another adult telling me what to do.” Bender-Loyd then left the area briefly and returned to the pool with Goshen and Goshen’s 15-year-old daughter, Samantha Stilson, and one of Stilson’s friends.

¶4 By that time, another tenant, Marsha, had arrived. Ginett recounted to Marsha a version of what had happened. Testimony  conflicts with respect to what occurred next, but the parties agree that Bender-Loyd, Goshen, Ginett, and Marsha all started arguing with each other about the earlier confrontation between Bender-Loyd and Ginett, and that Bender-Loyd left the pool area abruptly.

¶5 Bender-Loyd returned a few moments later with Goshen’s car keys in her hand and announced that she was driving herself home in the car. Goshen told Bender-Loyd that she could not take the car. Bender-Loyd then threw Goshen’s car keys at Goshen’s car and started walking home on foot.

¶6 Either later that day or the next day, Goshen and Stilson drove to Bender-Loyd’s home to discuss what had happened at the pool. 1 Goshen and Stilson testified that Bender-Loyd let them into her residence and then angrily asked what they were doing there. Bender-Loyd testified that Goshen and Stilson rushed into her house uninvited, told her that she was crazy, and told her that they were going to “get” her.

 

1   Goshen and Stilson testified that it was the next day. Report of Proceedings (RP) (May 15, 2007 at 81; see also RP (May 15, 2007) at 58 (Goshen testifying that pool incident occurred on a Tuesday; according to the police report, subsequent events occurred on Wednesday, June 28, 2006). Clerk’s Papers at 2. Bender-Loyd and her husband testified that Goshen and Stilson came to their house the same day as the pool incident. RP (May 16, 2007) at 35; RP (May 16, 2007) at 74-76.

¶7 Testimony similarly differs with respect to what happened next. Goshen testified that, as soon as she and her daughter entered Bender-Loyd’s home, Bender-Loyd began acting unpleasantly toward them. Goshen then said to her, “This crap has got to stop,” and told Bender-Loyd that she “couldn’t come to our house and act like that and start fight, or start fights with people.” Both Goshen and Stilson testified that Bender-Loyd responded by throwing things at them from across the room, including pots and pans and a Frisbee full of Bender-Loyd’s husband’s possessions. Stilson testified that Bender-Loyd screamed, “I’ll show you F-ing crazy,” at which point both Stilson and Goshen ran outside, with Bender-Loyd pursuing them and continuing to throw things at them. According to Goshen, while she and Stilson were fleeing, Bender-Loyd picked up a “good-sized” angel-shaped ceramic garden statue and smashed it into the side of Goshen’s car. Bender-Loyd then ran back into her house, grabbed a crystal vase, and hurled it at Stilson’s head, missing by inches and hitting the windshield of Goshen’s car instead. Goshen testified that she was “terrified” by this point, that she and Stilson got into their car, drove away, and honked the horn of their car at a passing police vehicle until it stopped and the officer inside assisted them.

¶8 Bender-Loyd’s account of what occurred at her home is very different than that of Goshen and Stilson. According to Bender-Loyd, Goshen told her that she was going to “pay,” and that she was not sure if that meant “death, you know, or what.” Bender-Loyd testified that after she repeatedly told Goshen to “get the F out of my house,” Goshen and Stilson refused to leave. Bender-Loyd recounted that Goshen instead called her “frickin’ crazy,” shoved a table against her “or kicked the dog,” that “stuff went flying,” and that she felt as though she “was being cornered and attacked.”

¶9 Bender-Loyd testified that what she did next was necessary for purposes of “defending myself and my property.” According to Bender-Loyd, Goshen and Stilson “wouldn’t leave,” so Bender-Loyd picked up the garden statue, ran forward, and threw it at Goshen’s car, where it shattered. Bender-Loyd testified that Goshen said, “I knew you were going to f’in do that, you crazy f’in B,” and still refused to leave, stating, “I’m going to make you pay.” Bender-Loyd’s testimony is unclear as to exactly how Goshen then got into her car, but apparently Goshen backed the car up, pointed it at Bender-Loyd, and used it “as a lethal weapon.” Based on this perception, Bender-Loyd ran into her home, where she heard Goshen say from outside, “Samantha, get out of the car and throw the rock right now,” at which point Bender-Loyd grabbed a vase, ran outside, and “disarmed” Stilson. Bender-Loyd testified that she heard Stilson throw several rocks at her home and that she was worried that Stilson would hit the one-year-old girl who lived next door. Bender-Loyd then testified that she again told Goshen and Stilson to leave, at which point Stilson got back into the car with Goshen. According to Bender-Loyd, Goshen then began driving backward toward Bender-Loyd in her car, at which point Bender-Loyd threw the vase she was holding at the top of the car.

¶10 Based on Goshen’s account of what had occurred and a separate conversation with Bender-Loyd in which she admitted throwing the garden statue and the vase at Goshen’s car, the police arrested Bender-Loyd. Bender-Loyd was charged by information with the crime of malicious mischief in the first degree based on the damage caused to Goshen’s car.

¶11 At Bender-Loyd’s trial, she proposed several jury instructions on self-defense and defense of property, which were given without objection by the State. In response, the State proposed the pattern “aggressor” jury instruction, which provides that self-defense may not excuse the actions of someone who instigated the conflict necessitating self-defense:

 

No person may, by any intentional act reasonably likely to provoke a belligerent response, create a necessity for acting in self-defense and thereupon use, offer, or attempt to use force upon or toward 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.

 

 

See 11 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 16.04, at 182 (2d ed. 1994) (WPIC). Bender-Loyd did not object to this instruction being given.

¶12 Bender-Loyd was convicted  as charged. She appeals.

 

II

¶13 Bender-Loyd first contends that, notwithstanding that she failed to object to the jury being instructed that self-defense cannot excuse the aggressor in a conflict from criminal culpability, the instruction was prejudicial error that requires reversal of her conviction. We disagree.

¶14 Jury instructions are proper if they are supported by substantial evidence, allow the parties to argue their theories of the case, and inform the jury of applicable law. State v. Clausing, 147 Wn.2d 620, 626, 56 P.3d 550 (2002). It is prejudicial error to submit an issue to the jury that is not warranted by the evidence, State v. Hughes, 106 Wn.2d 176, 191, 721 P.2d 902 (1986), but, “[i]n general, an objection to a jury instruction may not be raised by a criminal defendant for the first time on appeal, unless it involves a manifest error affecting a constitutional right.” State v. Schaler, 145 Wn. App. 628, 635, 186 P.3d 1170 (2008) (internal quotation marks omitted).

¶15 Bender-Loyd did not object to the aggressor instruction being given. On appeal, she does not even contend that the instruction being given amounts to a manifest error affecting a constitutional right, much less attempt to explain why such a violation might exist. In any event, Bender-Loyd’s contention that insufficient evidence was introduced at trial to warrant the jury being instructed with WPIC 16.04 is meritless. The record contains sufficient evidence–Goshen and Stilson’s account of Bender-Loyd throwing pots and pans at them when they came to her apartment, for example–from which the jury could reasonably have concluded that Bender-Loyd initiated the conflict that culminated in her damaging Goshen’s car. The instruction was warranted. There was no error. 2

 

2   Bender-Loyd also advances numerous theories about why the purportedly erroneous instruction was not harmless. Because there was no error, we need not consider whether it was harmless.

 

III

¶16 Bender-Loyd next contends that her conviction must be reversed because her attorney was constitutionally ineffective. Bender-Loyd asserts that her representation at trial fell below the minimum standard allowed by the state and federal constitutions, first, because her attorney failed to object to the aggressor instruction, and, second, because he failed to introduce a countervailing “revival” instruction. We are not persuaded by either of these contentions.

¶17 “A defendant is denied effective assistance of counsel if the complained-of attorney conduct (1) falls below a minimum objective standard of reasonable attorney conduct, and (2) there is a probability that the outcome would be different but for the attorney’s conduct.” State v. Benn, 120 Wn.2d 631, 663, 845 P.2d 289 (1993) (citing Strickland v. Washington, 466 U.S. 668, 687-88, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)).

¶18 Here, Bender-Loyd fails to demonstrate either prong of this test with respect to her attorney’s failure to object to the aggressor instruction. Her attorney’s failure to object to that instruction was not unreasonable because, as already discussed, the instruction was not objectionable.

¶19 With respect to Bender-Loyd’s second claim of constitutional ineffective assistance of counsel, it is well established that if the instigator of a conflict withdraws in such a time and manner as to clearly apprise her adversary that she is desisting, she may be entitled to “revive” a claim of self-defense, notwithstanding that she initiated the dispute. See State v. Dennison, 115 Wn.2d 609, 617, 801 P.2d 193 (1990).Bender-Loyd’s argument is that her counsel’s conduct fell below the minimum objective standard of reasonableness because he failed to have the jury instructed on this rule.

¶20 However, if Bender-Loyd’s attorney’s failure to propose a revival instruction can legitimately be characterized as trial strategy, it cannot serve as a basis for a claim of ineffective assistance. State v. Lord, 117 Wn.2d 829, 883, 822 P.2d 177 (1991). Here, it was consistent with Bender-Loyd’s trial strategy to rely on the theory of self-defense rather than on a revived self-defense theory. The theory of self-defense presumes that the defendant is not the initial aggressor, while the theory of revived self-defense allows an initial aggressor the right of self-defense once he or she has withdrawn from the conflict. State v. Craig, 82 Wn.2d 777, 783, 514 P.2d 151 (1973). Bender-Loyd’s case was presented as one of pure self-defense, not one of revived self-defense. Bender-Loyd did not even hint that she might have been the initial aggressor, either during the incident at the pool or the incident at Bender-Loyd’s residence. Indeed, Bender-Loyd’s testimony was aimed at portraying Goshen, Goshen’s daughter, and Goshen’s neighbors as initiating various conflicts with Bender-Loyd. In other words, the entire strategy underlying Bender-Loyd’s defense was inconsistent with the notion that she was the initial aggressor. The introduction of a revival instruction–which contains as one of its predicates that the defendant was the initial aggressor–would have directly undermined this theory. Accordingly, there was a legitimate tactical reason for Bender-Loyd’s counsel not to have the jury instructed on revival. Bender-Loyd’s counsel was not ineffective.

¶21 Affirmed.