FILED 

FEBRUARY 1, 2018 

In the Office of the Clerk of Court 

WA State Court of Appeals, Division III 

COURT OF APPEALS, DIVISION III, STATE OF WASHINGTON 

STATE OF WASHINGTON, 

Respondent, 

V. 

KARION H. THOMAS, 

Appellant. 

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No. 34634-0-111 

ORDER AMENDING OPINION 

IT IS ORDERED the opinion filed January 30, 2018, is amended as follows: 

Starting at the top of page ten that reads: 

( c) Consider any predisposition reports. 

In State v. JA.B., 98 Wn. App. 662, 991 P.2d 98 (2000), this court rejected a juvenile 

offender's argument that basing his standard range on the criminal history in the 

disposition report violated his right to due process. 

CONCLUSION 

We deny Kari on Thomas any relief on appeal. We grant Kari on Thomas' 

appellate counsel's motion to withdraw. 
A majority of the panel has determined this opinion will not be printed in the 

Washington Appellate Reports, but it will be filed for public record pursuant to RCW 

2.06.040. 

shall be amended to read: 

Karion Thomas forwards State v. Huddleston, 80 Wn. App. 916, 912 P.2d 1068 

( 1996), wherein the appellant also contends that his trial counsel performed inadequately 

by reason of failing to argue defense of others. Thomas asks that we remand his case for 

a new trial as this court did in Huddleston. Nevertheless, Thomas fails to note that this 

court rejected Kevin Huddleston' s claim of ineffective assistance of counsel and 

remanded for a new trial based on the trial court's failure to apply the correct definition 

of "great bodily harm" to the charges of assault. 

CONCLUSION 

We affirm Kari on Thomas' conviction for second degree assault. 

A majority of the panel has determined this opinion will not be printed in the 

Washington Appellate Reports, but it will be filed for public record pursuant to RCW 

2.06.040. 

· PANEL: Judges Fearing, Lawrence-Berrey, and Pennell 

FOR THE COURT: 
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION THREE

STATE OF WASHINGTON,

Respondent,

v.

KARION H. THOMAS,

Appellant.

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No. 34634-0-III

UNPUBLISHED OPINION

FEARING, C.J. — The trial court convicted the minor, Karion Thomas, of second 

degree assault. We affirm the conviction. 

FACTS

On the evening of December 11, 2015, 16-year-old Karion Thomas visited the 

home of his friend Ruben Lizarraga. Ruben’s father, Joseph Lizarraga, and stepmother, 

Erica Cauffman, left Ruben and Thomas home alone for several hours. When the couple

returned home around 10:30 p.m., they discovered juveniles partying and consuming 

alcohol. Some guests were intoxicated. 

Joseph Lizarraga confronted his son Ruben, who stood on the back patio. Joseph 

and his son entered the home, and the two engaged in a physical fight inside the kitchen. 

FILED

JANUARY 30, 2018

In the Office of the Clerk of Court

WA State Court of Appeals, Division III
No. 34634-0-III

State v. Thomas

2

Ruben punched Joseph in the mouth. Joseph retaliated, struck Ruben, and Ruben fell to 

the kitchen floor. A lady friend of Ruben’s attempted to intervene and jumped on 

Joseph’s back. Erica Cauffman pushed the lady out the front door. 

Joseph Lizarraga and son Ruben took the fight into the backyard. Ruben hit his 

father three times, after which Joseph punched Ruben and knocked him to the ground. 

Defendant Karion Thomas remained inside the house while Joseph Lizarraga and 

Ruben fought outside. After the altercation ended and Ruben lay on the ground, Thomas 

exited the residence. Thomas then argued with Joseph Lizarraga and sought to fight the 

father. An angry Thomas threatened to harm Joseph. Joseph spoke into Thomas’ face 

and told Thomas to leave the property. Joseph Lizarraga turned around, Thomas came 

from behind Joseph, and Thomas wrapped an arm around Joseph’s neck. Thomas 

pressed against Joseph Lizarraga’s throat and constricted his breathing. Another juvenile, 

Christopher Darion Simon, pulled Thomas off Joseph Lizarraga. Lizarraga believed he 

would have lost consciousness if Simon had not rescued him. 

Erica Cauffman called 911. All juveniles attending the party, including Ruben 

Lizarraga and Karion Thomas, fled the scene before police arrived. 

PROCEDURE

The State of Washington, in juvenile court, charged Karion Thomas, under RCW 

9A.36.021(1)(g), with one count of second degree assault of Joseph Lizarraga by 

strangulation or by suffocation. The case proceeded to a bench trial. 
No. 34634-0-III

State v. Thomas

3

During trial, Joseph Lizarraga testified that he spoke to a police officer the night of 

the assault, and, on the next day, he gave a written statement. On cross-examination, 

defense counsel asked Lizarraga if he told the officer that night about Thomas choking 

him, and Lizarraga replied in the affirmative. 

Ruben Lizarraga testified that after his father knocked him to the ground outside, 

he did not see any activity. Ruben testified he did not see Karion Thomas attack his 

father. 

Darion Simon testified during trial that Karion Thomas remained in the house 

while Joseph and Ruben Lizarraga fought outside. Simon testified that Thomas exited 

the home after the ending of the father-son struggle. According to Simon, he restrained 

Thomas because an angry Thomas wanted to fight Joseph Lizarraga after Joseph hurt 

Ruben. 

In Karion Thomas’ case in chief, defense counsel called Richland Police Officer 

John Raby, who responded to the scene on the night in question. Officer Raby testified 

that he journeyed to the Lizarraga home to address a domestic altercation between a 

father and son. Raby observed that Joseph Lizarraga suffered a bloody lip but no other 

injuries. The officer spoke with Joseph and Erica Cauffman, and, to his recollection, 

neither mentioned Thomas fighting or choking anyone. 

The State called Joseph Lizarraga as a rebuttal witness. Over defense objections 

of hearsay and improper rebuttal, the trial court allowed Lizarraga to testify regarding the 
No. 34634-0-III

State v. Thomas

4

written statement he proffered to law enforcement the day after the incident. Lizarraga 

testified he wrote: “Thomas grabbed me and choked me, hold [sic] me and started 

choking me and another boy, [Simon] had grabbed [Thomas] to get him off of me.” 

Report of Proceedings at 69. 

The trial court found Karion Thomas guilty of second degree assault. 

LAW AND ANALYSIS

On appeal, Karion Thomas contends the trial court erred when overruling his 

objection to the hearsay and rebuttal testimony when Joseph Lizarraga read from his 

written statement given to law enforcement. Thomas also argues his trial counsel 

performed ineffectively when failing to raise the defense of the defense of others. 

Hearsay Testimony of Joseph Lizarraga 

Karion Thomas assigns error to the trial court’s permitting Joseph Lizarraga to

read his prior statement to law enforcement. He claims the testimony constitutes 

inadmissible hearsay. ER 801(d) and another Thomas case controls this assignment of 

error. The rule reads: 

(d) Statements Which Are Not Hearsay. A statement is not 

hearsay if—

(1) Prior Statement by Witness. The declarant testifies at the trial 

or hearing and is subject to cross examination concerning the statement, 

and the statement is (i) inconsistent with the declarant’s testimony, and was 

given under oath subject to the penalty of perjury at a trial, hearing, or other 

proceeding, or in a deposition, or (ii) consistent with the declarant’s 

testimony and is offered to rebut an express or implied charge against the 
No. 34634-0-III

State v. Thomas

5

declarant of recent fabrication or improper influence or motive, or (iii) one 

of identification of a person made after perceiving the person. . . . 

ER 801.

At trial, Karion Thomas challenged the credibility of Joseph Lizarraga by 

suggesting that Lizarraga never reported being choked. This challenge freed Lizarraga to 

testify to his prior statement. 

In State v. Thomas, 150 Wn.2d 821, 865, 83 P.3d 970 (2004), the court held that, if 

cross-examination raises an inference that the witness changed her story in response to an 

external pressure, then whether that witness gave the same account of the story prior to 

the onset of the external pressure becomes highly probative of the veracity of the witness’

story given while testifying. The proponent of the testimony may then show that the 

witness’ prior consistent statement was made before the witness’ motive to fabricate 

arose in order to show the testimony’s veracity. 

Improper Rebuttal Testimony

Karion Thomas also characterizes Joseph Lizarraga’s reading of his written 

statement as improper rebuttal. He argues, based on State v. White, 74 Wn.2d 386, 444 

P.2d 661 (1968), that the State may employ rebuttal testimony only to answer new issues 

raised by the defense in the defense’s case. He adds that the State may not withhold 

testimony in its case in chief so that it may later present the evidence cumulatively after 

completion of the defense’s testimony. This second argument contains an internal 
No. 34634-0-III

State v. Thomas

6

inconsistency since, if the State withheld evidence during its case in chief, the evidence 

would not be cumulative if presented in rebuttal. 

Rebuttal evidence is admitted to enable the State to answer new matter presented 

by the defense. State v. White, 74 Wn.2d at 394. Genuine rebuttal evidence does not 

reiterate evidence presented in chief but consists of evidence offered in reply to new 

matters. State v. White, 74 Wn.2d at 394-95. The law does not permit the State to 

withhold substantial evidence supporting issues on which it carries the burden of proving 

merely in order to present this evidence cumulatively at the end of defendant’s case. 

State v. White, 74 Wn.2d at 395. The trial court may encounter difficulty in ascertaining 

whether the rebuttal evidence replies to new matters established by the defense. State v. 

White, 74 Wn.2d at 394-95. Frequently true rebuttal evidence overlaps or coalesces with 

the evidence in chief. State v. White, 74 Wn.2d at 395. Therefore, the question of 

admissibility of evidence on rebuttal rests largely on the trial court’s discretion, and error 

in denying or allowing it can be predicated only on a manifest abuse of that discretion. 

State v. White, 74 Wn.2d at 395. 

We reject Karion Thomas’ argument because the State was not permitted to ask 

Joseph Lizarraga to read from his statement to law enforcement during the State’s case in 

chief. The statement constituted inadmissible hearsay until the defense challenged 

Lizarraga’s story during the defense’s case in chief when Officer Raby stated that he did 

not recall Lizarraga complaining of being choked. The reading from the prior statement 
No. 34634-0-III

State v. Thomas

7

was permissible only after Thomas attacked the credibility of Lizarraga during Thomas’ 

case by noting that Lizarraga did not purportedly report any injury to his throat. Thus, 

reading of the statement served proper rebuttal testimony. The trial court abused no 

discretion. 

Ineffective Assistance of Counsel

Karion Thomas argues that his trial counsel unreasonably failed to assert the 

defense of others as a defense in his prosecution. This argument requires us to analyze 

rules of ineffective assistance of counsel. 

The Sixth Amendment to the United States Constitution and article I, section 22 of 

the Washington Constitution guarantee the right to effective assistance of counsel. 

Strickland v. Washington, 466 U.S. 668, 685-86, 104 S. Ct. 2052, 80 L. Ed. 2d 674 

(1984); State v. Grier, 171 Wn.2d 17, 32, 246 P.3d 1260 (2011). Washington courts have 

not extended the protections of the state constitution beyond the protections afforded by 

the United States Constitution. Instead, state decisions follow the teachings and rules 

announced in the United States Supreme Court’s seminal decision of Strickland v. 

Washington, 466 U.S. 668 (1984). An accused is entitled to more than a lawyer who sits 

next to him in court proceedings. In order to effectuate the purpose behind the 

constitutional protection, the accused is entitled to effective assistance of counsel. 

Strickland v. Washington, 466 U.S. at 686. 
No. 34634-0-III

State v. Thomas

8

A claim of ineffective assistance of counsel requires a showing that (1) counsel’s 

performance was deficient, and (2) the deficient performance prejudiced the defendant. 

Strickland v. Washington, 466 U.S. at 687. If one prong of the test fails, we need not 

address the remaining prong. State v. Hendrickson, 129 Wn.2d 61, 78, 917 P.2d 563 

(1996). 

For the deficiency prong of ineffective assistance of counsel, this court gives great 

deference to trial counsel’s performance and begins the analysis with a strong 

presumption that counsel was effective. State v. West, 185 Wn. App. 625, 638, 344 P.3d 

1233 (2015). Deficient performance is performance that fell below an objective standard 

of reasonableness based on consideration of all the circumstances. State v. McFarland, 

127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). The appellant bears the burden to prove 

ineffective assistance of counsel. State v. McFarland, 127 Wn.2d at 335. Effective 

representation entails certain basic duties, such as the overarching duty to advocate the 

defendant’s cause and the more particular duty to assert such skill and knowledge as will 

render the trial a reliable adversarial testing process. Strickland v. Washington, 466 U.S. 

at 688; In re Personal Restraint of Yung-Cheng Tsai, 183 Wn.2d 91, 100, 351 P.3d 138 

(2015). 

An attorney’s failure to recognize and raise an affirmative defense can fall below 

the constitutional minimum for effective representation. State v. Coristine, 177 Wn.2d 

370, 379, 300 P.3d 400 (2013). Nevertheless, if insufficient evidence supports a defense, 
No. 34634-0-III

State v. Thomas

9

counsel cannot be faulted for failing to raise the defense. State v. Flora, 160 Wn. App. 

549, 556, 249 P.3d 188 (2011). So we must decide if evidence supported a defense of 

defense of others for Karion Thomas. 

In Washington, one may lawfully use force in defense of others when one has a 

reasonable belief that the person being protected is in imminent danger. State v. Penn, 89 

Wn.2d 63, 66, 568 P.2d 797 (1977). As the rule states, the use of force is not lawful 

unless the actor reasonably believes that the danger is imminent. The undisputed 

evidence is that the fight between father and son Lizarraga ended before Karion Thomas 

left the house and ran to the backyard. Thomas took no steps to end the fight or protect 

his friend, Ruben Lizarraga. Thomas, without provocation, challenged Joseph Lizarraga 

to a fight, and, when Joseph turned his back, Thomas choked Joseph. 

Karion Thomas claims that Ruben Lizarraga’s friends grew concerned for Ruben’s 

safety. Nevertheless, the trial record cited by Thomas for this factual allegation only 

establishes that one friend held concern for Ruben’s safety while Ruben and his father 

fought in the kitchen. No one testified to concern for Ruben’s safety after Joseph 

Lizarraga and Ruben went to the backyard. 

Karion Thomas emphasizes Joseph Lizarraga’s testimony that he understood that 

Karion Thomas sought to protect his friend, Ruben. This testimony does not provide any 

factual support, however, for a conclusion that Thomas attacked Lizarraga at a time that 

Ruben was in imminent need of protection. 
No. 34634-0-III 

State v. Thomas 

( c) Consider any predisposition reports. 

In State v. JA.B., 98 Wn. App. 662, 991 P .2d 98 (2000), this court rejected a juvenile 

offender's argument that basing his standard range on the criminal history in the 

disposition report violated his right to due process. 

CONCLUSION 

We deny Kari on Thomas any relief on appeal. We grant Kari on Thomas' 

appellate counsel's motion to withdraw. 

A majority of the panel has determined this opinion will not be printed in the 

Washington Appellate Reports, but it will be filed for public record pursuant to RCW 

2.06.040. 

Fearini,ciy 1 

WE CONCUR: 

Pennell, J. 

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