The State of Washington, Respondent, v. Timothy L. Notch, Appellant.
COURT OF APPEALS OF WASHINGTON, DIVISION ONE
2008 Wash. App. LEXIS 1923
August 4, 2008, Filed
COUNSEL: Counsel for Appellant(s): Oliver Ross Davis, Washington Appellate Project, Seattle, WA.
Counsel for Respondent(s): Erik Pedersen, Attorney at Law, Skagit Co Prosc Atty Ofc, Mount Vernon, WA.
JUDGES: Authored by Susan Agid. Concurring: Ann Schindler, Marlin Appelwick.
¶1 Per Curiam — Timothy Notch appeals his conviction of assault in the second degree. Notch asserted a claim of self-defense and contends that the trial court erred by giving a first aggressor jury instruction based on his aggressive words. Because the record also contains evidence to support a finding that Notch engaged in aggressive conduct first, we affirm.
¶2 David Walrath and defendant Timothy Notch worked together at a saw mill in Mount Vernon. Walrath eventually moved into a vacant room at the house where Notch was a tenant, and the two began commuting to and from work together. According to Walrath, he and Notch went to two bars after work on May 6, 2006. While they were drinking at the second bar, Notch asked Walrath if he could borrow $ 100. Walrath refused to lend him the money. Notch became angry at Walrath’s refusal and told him that he wanted to fight. Eventually, Notch left the bar on foot, and Walrath drove himself home to take a nap.
¶3 When Notch came home, he went to Walrath’s room where Walrath was lying down. He told Walrath that he was going to “kick [his] ass,” called him a “pussy,” and demanded that they go outside to fight. When Notch left the room, Walrath called 911 for help to settle the dispute or help to get himself moved out of the house. He then went downstairs to find the address of the house for the 911 operator.
¶4 Notch was already in the dining room when Walrath came downstairs. When he heard Walrath on the phone with the 911 operator, he told him to go outside because he wanted to beat him. Notch started pushing him in an attempt to drag him outside. He then knocked the phone away from Walrath’s hand, and the phone fell to the ground, though the 911 operator remained on the call. Walrath did not remember striking or touching Notch in any way.
¶5 Notch then went outside, and Walrath followed him in an attempt to settle the dispute. He walked onto the porch and down a few steps, at which point he felt something strike him on the back of his head. The next thing Walrath remembered was waking up at Harborview Medical Center. The 911 tape recorded Notch saying, “And I’m done mother fucking. I’m done. Listen mother fucker, I’ll take you out and beat the fuck out of you again.” On his way out of the house, Notch said to Walrath: “You’re fucking lucky you’re still breathing mother fucker.”
¶6 According to the doctors who saw Walrath, he suffered from bleeding in multiple parts of the brain, multiple fractures of the nasal bones, sinus bones, and the rim of the right eye, and swelling of soft tissue. One of the doctors opined that the level of force used to cause the injuries was significant and not consistent with an act such as falling from a chair to the ground.
¶7 Notch testified to a different version of events. According to Notch, Walrath owed Notch $ 200. When he asked Walrath to give back $ 100 of the $ 200, Notch claimed that Walrath called him a “toothless son of a bitch” and attempted to start a fight. Notch claimed that he refused to fight, but left for home on foot while Walrath left by car.
¶8 Notch then claimed that when he arrived home, he went into Walrath’s room and told him that if he wanted to fight they could go outside. Notch called him a “bitch” and went outside to smoke a cigarette while Walrath remained inside. When he went back inside, he saw Walrath in the dining room reading an address to a 911 operator. Notch then claimed that Walrath told the operator that Notch was “in his face” and about to assault him, which Notch denied. After that, Notch claimed that Walrath kicked him in the groin. Notch denied any kind of physical struggle with Walrath at that point, but admitted that in response to the kick in the groin, he “swung” at Walrath to knock away the phone and that, in the process, his hand “skimmed” Walrath.
¶9 Notch then claimed that after he knocked the cell phone from Walrath’s hand, Walrath turned around, “sprint[ed]” two steps, and ran face first into the door frame. He then stumbled back, hit a kitchen counter or cabinet, fell facedown onto the kitchen floor, and remained on the ground, moaning. Because Notch felt Walrath was “faking it,” he went into the kitchen, rolled Walrath over, and punched him in the face. After telling Walrath he was “lucky he was still breathing,” Notch then left the house to turn himself in.
¶10 The State charged Notch with one count of second degree assault. At trial, Notch claimed self-defense, and the court gave the jury a self-defense instruction. The State then requested a first aggressor instruction, which was also given by the trial court though over Notch’s objection. The jury found Notch guilty as charged, and the trial court imposed a standard range sentence of 15 months’ confinement.
¶11 Notch contends the trial court erred by giving the first aggressor instruction. He argues that the only evidence that he was the first aggressor was his words threatening to fight. We disagree.
¶12 Jury instructions are appropriate where they “permit each party to argue his theory of the case and properly inform the jury of the applicable law.” 1 Generally, self-defense cannot be invoked by a defendant who is the first aggressor and whose acts result in an altercation unless he or she first withdraws. 2 A first aggressor instruction is appropriate when there is some credible evidence from which a jury can reasonably determine that the defendant engaged in conduct that precipitated the fight and “provoked the need to act in self-defense.” 3 The trial court may give an aggressor instruction despite conflicting evidence about whether the defendant’s conduct precipitated the fight. 4 To determine whether there is sufficient evidence to support giving the instruction, we view the evidence in the light most favorable to the party requesting the instruction. 5
1 State v. Riley, 137 Wn.2d 904, 909, 976 P.2d 624 (1999) (quoting State v. Bowerman, 115 Wn.2d 794, 809, 802 P.2d 116 (1990)).
4 Id. at 910 (citing State v. Davis, 119 Wn.2d 657, 666, 835 P.2d 1039 (1992)).
5 State v. Fernandez-Medina, 141 Wn.2d 448, 455-56, 6 P.3d 1150 (2000).
¶13 While an aggressor instruction is proper if it is based on aggressive conduct, words alone will not constitute sufficient provocation to warrant giving the instruction. 6 The purpose of the first aggressor doctrine is to deny the aggressor the ability to claim self-defense “because the victim of the aggressive act is entitled to respond with lawful force.” 7 If words alone were sufficient to justify a victim’s use of force, the “victim” could respond to degrading statements with force against which the speaker could not lawfully defend. 8
6 Riley, 137 Wn.2d at 909-10.
7 Id. at 913.
8 Id. at 911-12.
¶14 Here, the State relies on evidence that Notch was angry and, at several points, verbally expressed an eagerness to fight in support of the first aggressor instruction. 9 This evidence is insufficient to support the instruction because words alone do not constitute first aggressor “conduct.” But viewing the record in the light most favorable to the State, we conclude that it contains additional evidence that Notch engaged in aggressive conduct before his claimed need to act in self-defense arose.
9 Id. at 910-11.
¶15 Walrath testified that Notch became physical first, and after Notch saw him on the phone with the 911 operator, Notch pushed him to go outside and fight and knocked the phone from Walrath’s hand. While Notch presented conflicting testimony that Walrath kicked him in the groin before he knocked the phone from Walrath’s hand, the evidence was sufficient to support the instruction because Notch’s credibility was a question for the jury. Thus, when viewing the evidence in the light most favorable to the State, the evidence supported a finding that Notch was the first to engage in aggressive conduct.
¶16 We further note that even without the first aggressor instruction, the record does not support Notch’s self-defense claim. The second degree assault charge was based on the injuries to Walrath’s head. But the record does not support a finding that Notch’s alleged acts of self-defense caused these injuries.
¶17 Essentially, Notch’s theory was that the head injuries resulted from an accident, not from the things he did to defend himself. Notch claims Walrath’s head injuries occurred when Walrath “sprint[ed]” two steps and ran into a door jamb.
¶18 Notch’s additional claim that he was acting in self-defense when he punched Walrath in the face is neither factually credible nor legally sound. While Notch speculated that Walrath was “faking it” when he was lying facedown on the floor after being hit in the head and claimed that he feared retaliation, Notch admits that he had to actually walk over to Walrath, turn him over, and punch him in the face in order to act in what he alleged as “self defense.” These facts, even if the jury believed them, cannot support a claim that Notch feared imminent harm necessary to justify self-defense. Nor did Notch’s act of knocking the phone out of his hands and skimming Walrath’s face after Walrath allegedly kicked him in the groin support a self-defense claim because this act was not the charged offense.
¶19 We affirm.