IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,

Respondent,

v. 

ANTHONY PAUL JOHNSON,

 Appellant.

No. 84181-5-I

DIVISION ONE

UNPUBLISHED OPINION

COBURN, J. — Anthony Johnson appeals his convictions for assault in the first 

degree with a deadly weapon and assault in the second degree. He argues that the 

superior court abused its discretion by categorically refusing to consider both of his 

motions for standby counsel. We agree that the superior court did not meaningfully 

consider Johnson’s original motion, but conclude that the error was harmless. In a 

statement of additional grounds, Johnson also asserts that the court improperly 

provided a “First Aggressor” instruction and a “No Duty to Retreat” instruction and that 

the convictions were based on insufficient evidence. These claims lack merit. 

Accordingly, we affirm.

1

 1 On December 18, 2023, Johnson filed a motion to stay these proceedings pending this 

court’s decision on his motion to modify the acting chief judge’s order denying Johnson’s motion 

to consolidate his personal restraint petition No. 85640-5-I with his direct appeal. This court 

denied Johnson’s motion to modify on December 19, 2023, so Johnson’s motion to stay these 

proceedings is moot. See State v. Gentry, 125 Wn.2d 570, 616, 888 P.2d 1105 (1995) (a case 

is moot if the court can no longer provide effective relief). 
No. 84181-5-I/2

2

FACTS

Johnson moved into the Jack Lobdell Apartments in Auburn in 2016. The 

apartment complex consists of four two-story buildings with exterior stairs and walkways 

and a gated parking lot with assigned parking slots. Johnson believed his neighbors 

were maliciously damaging his car, so he would frequently stand in the parking lot 

admonishing his neighbors to leave his car alone “or I’m going to start messing with 

your car.” Several of Johnson’s neighbors testified that they had witnessed this 

behavior on multiple occasions. 

Terrence Morgan lived in a second-floor unit adjacent to the parking lot. Morgan 

testified that on the afternoon of August 20, 2021, he heard Johnson “screaming more 

about the ding in his car” and threatening to “fuck everybody up.” Morgan and “about 

seven people” came out of their apartments to see what was going on. Morgan 

watched as Johnson returned to his apartment, emerged with an object in his hand, and 

shouted “I’m getting ready to fuck every car up in the parking lot.” Morgan was 

concerned that Johnson might actually try to damage his vehicle, so Morgan said 

“You’re not gonna fuck my car up.” Johnson started coming towards Morgan and said 

“Do you want some of this?” Morgan saw that Johnson had a knife with an eight-to-teninch blade in his hand and responded “I’m too old to fight.” Johnson immediately 

sprinted across the parking lot and up the stairs to Morgan’s doorstep. Morgan thought 

Johnson looked “[v]ery angry and enraged . . . like he was coming to do something.” 

At that point, Morgan decided he “need[ed] to get something to fend [Johnson] 

off” so he grabbed a “cheap” and “dull” “display sword” from his wall and held it in front 

of him. The sword was about an inch wide and 30 inches long, including its 12-inch 
No. 84181-5-I/3

3

handle. Johnson grabbed the sword blade with his right hand, causing the metal to 

bend, and said “Now what? Now what?” Johnson then stabbed Morgan four times with 

the knife in his left hand. Morgan dropped the sword, retreated to his apartment, and 

asked neighbors to call 911. 

Joshua Swogger lived in an adjacent building in the same apartment complex. 

Swogger testified that he saw Johnson walking away from Morgan’s apartment with a 

knife in his hand and noticed that Morgan was bleeding. Swogger told Johnson “What 

the fuck are you doing? You just stabbed a man. You’re going to jail.” Johnson 

responded, “I mean, yeah, I am going to jail, so I might as well fuck you up too.” 

Swogger realized Johnson was coming after him, so he ran into his apartment and 

closed the front door while Johnson attempted to push it open from the other side. 

Swogger “had to use [his] full weight” to push the door closed so he could lock it. 

Swogger then heard Johnson’s car “screech out of the parking lot.” Swogger testified 

that he was afraid that he or his son would have been stabbed if Johnson had managed 

to get inside. 

Benjamin Grantham testified that he witnessed both incidents. Grantham heard 

Morgan tell Johnson “I’m an old man. I ain’t trying to fight nobody.” Grantham saw 

Johnson rush upstairs “like a lightning bolt” and stab Morgan. He then saw Johnson run 

down and across to Swogger’s apartment building with the knife in his hand “fly[ing] up 

those stairs like I’ve never seen anybody move in my life.” Johnson was “trying to 

forcibly enter” Swogger’s apartment and “trying to slash at them” while Swogger was 

“trying to shut [the door].” Johnson then “[t]ried to kick the front of people’s doors” 
No. 84181-5-I/4

4

before getting in his car and driving away. Grantham’s 911 call describing the events in 

real time was played to the jury. 

Charles Tiffany lived near Morgan in the Lobdell Apartments and spoke with 

Morgan almost every day. Tiffany testified that he heard screaming, went outside, and 

saw Morgan “holding a shirt on his chest” with “a lot of blood.” Tiffany then saw 

Johnson going back upstairs “straight up to [Swogger’s] door.” After Swogger ran to his 

apartment and locked the door, Johnson kicked it forcefully, then got in his car and left. 

Shirley Lidell, who lived downstairs from Morgan, testified that she saw Johnson argue

with Morgan and stab Morgan in the shoulder with a large knife. She called 911 and 

went upstairs to assist Morgan. And Lobdell resident Madrina Contreras testified that 

she heard Johnson yelling in the parking lot, saw Johnson walking up the stairs with a 

large knife, and heard something about Morgan being stabbed. 

Morgan was airlifted in “full code” to Harborview Medical Center, where he was 

treated by Dr. Barclay Stewart.2 Dr. Stewart testified that Morgan suffered three small 

stab wounds to the upper part of his right chest and one small stab wound to the right 

upper arm. One of the stab wounds punctured Morgan’s lung and created a small 

pneumothorax that required overnight monitoring.3 Morgan was not in shock and did 

not need surgery or stitches. Dr. Stewart testified that on a more probable than not 

basis Morgan “would have been fine” without medical care but that the wounds could 

have been life threatening if they had been deeper. 

 2 Dr. Stewart explained that a patient such as Morgan with torso and junctional 

penetrating injuries triggers a “full code” trauma activation response, meaning that a team of 

medical personnel will be in the room waiting when the patient arrives. 

3 Dr. Stewart defined “pneumothorax” as a puncture wound resulting in “air accumulating 

outside the lungs.” 
No. 84181-5-I/5

5

Johnson claimed that he acted in self-defense. He said he was standing in the 

parking lot complaining about the damage to his car when Morgan came out and said 

“You’re not going to touch my car.” Johnson responded “So stop them from touching 

my car.” Morgan responded “I’m too old to fight, okay? But you’re not going to touch my 

car.” Johnson said “Well, what are you going to do if I touch your car?” and Morgan 

said “If you touch my car, I got something for you.” Johnson said “What do you got?” 

and Morgan said “Come up here and I’ll show you.” Johnson said he thought Morgan 

was going to give him “some good advice” so he went upstairs. Instead, Morgan 

reached inside, grabbed his sword, and “went to stick it in [Johnson’s] chest.” Johnson 

grabbed the sword, which he described as “sharp,” and was cut in the process.4 

Johnson said “[d]o you really want to do this?” and Morgan “didn’t say a word” so 

Johnson took out his pocketknife, “aimed for [Morgan’s] shoulder,” and walked away. 

Johnson said Morgan “ambushed” him and he denied having the pocketknife in his 

hand when he went upstairs to speak to Morgan. Johnson went to his car to wait for 

police when he heard Swogger shouting at him. Johnson responded “fuck you,” chased 

Swogger up the stairs, and drove away. Johnson denied threatening Swogger with a 

knife or trying to get into his apartment. 

Johnson was arrested the following day after he turned himself in to the Seattle 

Police Department. The State subsequently charged Johnson by amended information 

with assault in the first degree with a deadly weapon and assault in the second degree. 

At his arraignment on September 16, 2021, Johnson announced that he wanted 

to represent himself. Johnson then filed a handwritten motion seeking to proceed pro 

 4 At the time he was arrested, Johnson had “three very small cuts on [his] right upper 

extremity.”
No. 84181-5-I/6

6

se with co-counsel or with standby counsel “to ensure all motions, pleadings, etc. are 

filed in a timely manner and to interview witnesses and collect evidence outside of my 

personal ability to do so – due to my status as an in-custody litigant.” 

At a hearing on October 7, 2021, Johnson’s appointed counsel asked the court to 

consider Johnson’s request. Before hearing from Johnson, the trial court responded, 

“No, this Court will not entertain standby counsel or co-counsel.” When counsel 

attempted to respond, the trial court interjected stating, “[t]hat places attorneys in an 

untenable position as they have ethical obligations in their practice that, frankly, pro se 

defendants may not be aware of.” While the court engaged in a colloquy with Johnson

about proceeding pro se and acknowledged that he earlier represented that he has 

proceeded pro se in the past, Johnson started to explain “I have, at which time I did get 

standby counsel. But I guess I’m understanding that that’s not going to be – ” The 

court interrupted stating, “It’s within the court’s discretion, and I don’t do that.” The court 

continued its colloquy whereby Johnson confirmed his understanding of what 

proceeding pro se would entail. The court explained that if Johnson represented 

himself, the judge is not required to provide him with an attorney as a legal advisor or 

standby counsel. Johnson objected to this ruling, which the court noted but overruled. 

On October 14, 2021, over Johnson’s objection, the court continued the omnibus 

hearing two weeks so the State could provide Johnson with discovery materials. At the 

October 27, 2021 omnibus hearing, over Johnson’s objection, the court found good 

cause to continue the trial date to November 23, 2021 and reset the speedy trial 

expiration date to December 23, 2021 so Johnson could get an investigator and time to 

litigate the State’s discovery redactions. At an omnibus hearing on November 9, 2021, 
No. 84181-5-I/7

7

Johnson indicated that he was not ready to proceed to trial as scheduled but 

nevertheless objected to any further continuance. The court found good cause to 

continue the trial date to January 13, 2022 so Johnson could be prepared. Johnson’s

defense investigator was appointed shortly thereafter. 

On December 1, 2021, Johnson moved to dismiss for speedy trial violations and 

because the prosecutor’s mismanagement of discovery forced him to have to choose 

between his speedy trial rights and being prepared to defend himself at trial. On 

December 17, 2021, the court denied the motion, finding the November 9, 2021 

continuance was appropriate under the circumstances and dismissal was not warranted 

because there was no showing that the State had acted in bad faith. The court denied 

Johnson’s motion for reconsideration. 

On January 13, 2022, the court postponed Johnson’s trial date to February 14, 

2022 due to a surge in Covid-19. Johnson then set another motion for appointment of 

standby counsel. On February 11, 2022, a hearing took place before a different judge 

than the one who denied Johnson’s previous motion. The judge at this hearing asked 

Johnson to explain why he wanted standby counsel. Johnson provided three reasons: 

(1) the State added a deadly weapon enhancement which implicates different variables 

in sentencing; (2) unlike the first request which was before trial, this request is for during 

trial in the event there are procedural issues that come up that he may not be aware of; 

and (3) requiring Johnson to question himself if he testified would not “play too well” for 

his defense in light of the fact there were implications by a witness in the probable 

cause statement suggesting Johnson suffered from mental health issues. The trial 

court asked whether Johnson’s previous request for standby counsel had been denied, 
No. 84181-5-I/8

8

and Johnson confirmed that it had. The court then considered and denied Johnson’s

motion, reasoning as follows: 

So – and I appreciate the concern about questioning yourself. There are 

ways to accomplish that. You know, you’re not the first person and, in 

fact, it’s an issue when anyone goes pro se. And I think there are ways to 

do that such that if you’re worried, for example, about somehow if there’s 

a mental health issue and that you would somehow by participating in that 

kind of thing play into that. I think there are ways a trial judge could 

mitigate any issue about that. Normally, there may be an instruction that 

may be appropriate. Normally, often the judge will let the person testify in 

a narrative format. And then of course, you’ll be questioned by the 

prosecutor. But that will be up to the trial judge.

I can’t – you know, standby counsel, we’ve not generally appointed. It 

was something more commonly done 10 years ago, and I think the court’s 

experience wasn’t that great. Frankly, I think I can say that the lawyers 

who served as standby counsel weren’t very happy about doing it.

I don’t think what I’ve heard currently justifies standby counsel based on 

some of the issues you’ve raised. It frankly seems, albeit you may have 

some problems knowing motions, you’ve been pretty, your pleadings have 

been appropriate and well done, so.

I can’t comment whether you will ultimately – you mentioned something 

about right to go pro se. I can’t comment on what, if you brought a motion 

and then you wanted to give up representation, what then would happen, 

and you have made no interest in doing that. Sometimes – and it may be 

a judge – the State may object, and a judge may or may not allow that. 

There have been issues – and I’m not saying this is you – where 

defendants have gone back and forth repeatedly, and it delays the trial. 

Most of your motions seem to indicate to me you’re eager to go to trial, so 

I’m not sure that’s what would be going on. But there’s a history there in 

the past of that concern.

So I’m going to deny the motion for standby counsel. It was denied 

previously. I haven’t heard a – I think many of the issues you raise could 

be handled at a trial in an appropriate way short of having standby 

counsel.

The court’s written ruling stated that the motion for standby counsel was denied 

because “[a]ppointment of standby counsel is a discretionary ruling by the court at this 
No. 84181-5-I/9

9

stage of the proceedings” and “[t]he defendant has not articulated sufficiently compelling 

reasons to justify the appointment of standby counsel.” 

The jury convicted Johnson as charged. Johnson appeals. 

DISCUSSION 

Standby Counsel 

Johnson argues that both trial court judges abused their discretion as a matter of 

law by categorically refusing to consider Johnson’s repeated requests for appointment 

of standby counsel. A trial court abuses its discretion when its decision is manifestly 

unreasonable or exercised on untenable grounds or for untenable reasons. State v. 

Enstone, 137 Wn.2d 675, 679-80, 974 P.2d 828 (1999).

Criminal defendants have a right to self-representation under both article I, 

section 22 of the Washington State Constitution and the Sixth Amendment to the United 

States Constitution. State v. Madsen, 168 Wn.2d 496, 503, 229 P.3d 714 (2010). 

Although not required under either the state or federal constitutions, a trial court may 

appoint standby counsel to aid a pro se defendant at the defendant’s request. State v. 

McDonald, 143 Wn.2d 506, 511, 22 P.3d 791 (2001). Our Supreme Court “has defined 

standby counsel’s role as not necessarily representing the defendant but as providing 

technical information.” Id. There is no absolute right of pro se litigants to standby 

counsel or “hybrid representation” whereby defendants may serve as co-counsel with 

their attorneys. State v. DeWeese, 117 Wn.2d 369, 379, 816 P.2d 1 (1991). 

Johnson acknowledges that pro se defendants are not entitled to standby 

counsel, but argues that the trial court must exercise its discretion to grant or deny such 

a request based on the individual circumstances before it. We agree. It is well 
No. 84181-5-I/10

10

established that a failure to exercise discretion constitutes an abuse of discretion. See, 

e.g. State v. Grayson, 154 Wn.2d 333, 342, 111 P.3d 1183 (2005) (“[w]hile no 

defendant is entitled to an exceptional sentence below the standard range, every 

defendant is entitled to ask the trial court to consider such a sentence and to have the 

alternative actually considered.”); State v. O’Dell, 183 Wn.2d 680, 697, 358 P.3d 359 

(2015) (failure to meaningfully consider youth as a possible mitigating circumstance in 

sentencing); State v. Stearman, 187 Wn. App. 257, 270, 348 P.3d 394 (2015) (refusal to 

consider venue motion); State v. Flieger, 91 Wn. App. 236, 242, 955 P.2d 872 (1998) 

(failure to conduct a hearing regarding restraints on criminal defendant). 

Here, in addressing Johnson’s second motion for standby counsel, the court 

meaningfully considered Johnson’s circumstances and made an individualized

determination. The court noted that appointing standby counsel can be problematic, but 

did not categorically refuse to consider his request on that basis. Rather, the court 

considered and addressed the reasons for Johnson’s request and ruled that “I don’t 

think what I’ve heard currently justifies standby counsel based on some of the issues 

you’ve raised.” The court also noted that Johnson had demonstrated he was capable of 

raising “appropriate and well done” motions and that Johnson’s concerns “could be 

handled at a trial in an appropriate way short of having standby counsel.” Thus, the trial 

court properly exercised its discretion in denying Johnson’s second motion. 

The same cannot be said regarding Johnson’s original motion for standby 

counsel. Unlike the second motion, the court that heard Johnson’s first request did not 

meaningfully consider the merits of Johnson’s request in light of the specific 

circumstances of the case. Instead, the court simply stated that it “will not entertain 
No. 84181-5-I/11

11

standby counsel” because doing so places attorneys “in an untenable position.” The 

court denied Johnson’s request because, in the court’s words, “I don’t do that.” 

Although Johnson was not entitled to standby counsel, the court’s categorical refusal to 

exercise its discretion to determine whether standby counsel should be appointed in his 

case constitutes an abuse of discretion. 

The State’s reliance on State v. Davis, 6 Wn. App. 2d 43, 429 P.3d 534 (2018), 

rev’d on other grounds, 195 Wn.2d 571 (2020) does not compel a different outcome. In 

Davis, the pro se defendant claimed that the trial court abused its discretion by 

categorically denying his requests for standby counsel. Id. at 52. This court rejected 

the defendant’s claim because the record did not support his argument. Id. at 53.

Specifically, the trial court explained that the defendant failed to demonstrate his need 

for standby counsel overcame the ethical and practical concerns of doing so, and 

afforded him opportunities to argue that his circumstances had changed since the court 

denied his original motion. Id. Unlike Davis, the first trial court judge did not 

meaningfully consider Johnson’s request. 

Under the nonconstitutional harmless error standard, reversal is required only if 

there is a reasonable probability that the error materially affected the outcome of the 

trial. State v. Smith, 106 Wn.2d 772, 780, 725 P.2d 951 (1986). Johnson asserts that

the error was not harmless because the appointment of standby counsel would have 

reduced delay and allowed him to more efficiently and effectively represent himself. But 

defendants are afforded the right of self-representation “despite the fact that exercising 

the right will almost surely result in detriment to both the defendant and the 

administration of justice.” State v. Vermillion, 112 Wn. App. 844, 850-51, 51 P.3d 188 
No. 84181-5-I/12

12

(2002). Johnson does not challenge the validity of his waiver of his right to counsel. 

Nor does he identify any other reason that the outcome of the trial might have been 

different had standby counsel been appointed. Thus, the error in failing to meaningfully 

consider Johnson’s first request for standby counsel is harmless and reversal is not 

required. 

Statement of Additional Grounds

A. “First Aggressor” Instruction

Over Johnson’s objection, the court granted the State’s request for a “first 

aggressor” instruction.5 Johnson contends the instruction was unwarranted. We 

disagree. 

Jury instructions are generally sufficient if “they are supported by substantial 

evidence, properly state the law, and allow the parties an opportunity to satisfactorily 

argue their theories of the case.” State v. Espinosa, 8 Wn. App. 2d 353, 360-61, 438 

P.3d 582 (2019). We review the adequacy of jury instructions de novo. State v. 

Clausing, 147 Wn.2d 620, 626, 56 P.3d 550 (2002).

“[I]n general, the right of self-defense cannot be successfully invoked by an 

aggressor or one who provokes an altercation.” State v. Riley, 137 Wn.2d 904, 909, 

976 P.2d 624 (1999). A first aggressor instruction is proper where there is credible 

evidence on which a reasonable juror could rely in concluding the defendant was the 

aggressor. State v. Sullivan, 196 Wn. App. 277, 289, 383 P.3d 574 (2016). Such an 

 5 The instruction stated: “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. Words alone 

are not adequate provocation for the defendant to be the aggressor.” 
No. 84181-5-I/13

13

instruction is also appropriate “if there is conflicting evidence” as to the identity of the 

first aggressor. Riley, 137 Wn.2d at 910. We analyze the evidence supporting the 

instruction in the light most favorable to the party that requested the instruction. State v. 

Grott, 195 Wn.2d 256, 270, 458 P.3d 750 (2020). 

Johnson asserts that credible evidence demonstrates he did not initiate or 

provoke a confrontation with Morgan and that the instruction prejudiced his theory of 

self-defense. We disagree. The jury was presented with ample testimony supporting a 

finding that Johnson’s conduct precipitated a fight. The fact that Johnson’s testimony 

conflicted with that of Morgan and other witnesses did not deprive Johnson of his right 

to have the jury to decide whether or not to accept his self-defense claim. The trial 

court did not err in giving the first aggressor instruction.

B. “No Duty to Retreat” Instruction

Johnson argues the trial court erred in granting the State’s request for a “no duty 

to retreat” instruction.6 We disagree. 

It is well settled that a person has no duty to retreat when they are assaulted in a 

place where they have a right to be. State v. Redmond, 150 Wn.2d 489, 493, 78 P.3d 

1001 (2003). A “no duty to retreat” instruction is appropriate “where a jury may 

conclude that flight is a reasonably effective alternative to the use of force in selfdefense.” State v. Williams, 81 Wn. App. 738, 744, 916 P.2d 445 (1996). A “no duty to 

retreat” instruction is typically requested by the defendant in support of a theory of selfdefense. See 11 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS:

 6 The instruction stated: “It is lawful for a person who is in a place where that person has 

a right to be and who has reasonable grounds to believe that he is being attacked to stand his 

ground and defend against such attack by the use of lawful force. The law does not impose a 

duty to retreat.” 
No. 84181-5-I/14

14

CRIMINAL 17.05, at 280 (4th ed. 2016). “The trial court cannot allow the defendant to put 

forth a theory of self-defense, yet refuse to provide corresponding jury instructions that 

are supported by the evidence in the case.” Redmond, 150 Wn.2d at 495. 

Here, as part of his theory of self-defense, Johnson argued that Morgan “did not 

take any opportunity to avoid any contact with me” and that he “could have went back 

in, shut the door.” The State requested the “no duty to retreat” instruction because it 

was concerned that “the jury could use Mr. Morgan’s testimony about not retreating to 

prejudice their interpretation of his conduct.” The trial court agreed that the instruction 

was appropriate “given that it really is unfair to leave the jury with a question in their 

mind as to whether Mr. Morgan should be held to the duty of retreating back into his

apartment when he believed that Mr. Johnson had a knife and was coming up to have a 

physical altercation with him.” 

Johnson argues that it is highly prejudicial and irregular for the State to propose a 

jury instruction designed for the defendant and apply it to an alleged victim over the 

defendant’s objection. But Johnson offers no authority for the proposition that it is 

improper to give this instruction to explain or justify the conduct of an alleged victim 

versus the conduct of a defendant. We conclude that the instruction was appropriate in 

light of Johnson’s theory that Morgan could have retreated rather than grabbing a 

sword. Contrary to Johnson’s claim, the instruction did not shift the burden of proof or 

prevent the jury from considering whether Morgan was the first aggressor. 

C. Insufficiency of the Evidence – Assault in the First Degree with a Deadly Weapon

Johnson also argues that insufficient evidence supported his conviction for 

assault in the first degree with a deadly weapon. He claims that the evidence fails to 
No. 84181-5-I/15

15

establish that the knife was used in a manner readily capable of causing death or great 

bodily harm and there was no evidence he intended to cause great bodily harm given 

that Morgan’s injuries were merely superficial. We disagree. 

Due process requires the State prove every element of a crime beyond a 

reasonable doubt. State v. Johnson, 188 Wn.2d 742, 750, 399 P.3d 507 (2017). “To 

determine whether there is sufficient evidence to support a conviction, we view the 

evidence in the light most favorable to the prosecution and determine whether any 

rational fact finder could have found the elements of the crime beyond a reasonable 

doubt.” State v. Marohl, 170 Wn.2d 691, 698, 246 P.3d 177 (2010). “A claim of 

insufficiency admits the truth of the State’s evidence and all inferences that reasonably 

can be drawn therefrom.” State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).

The court, consistent with RCW 9A.36.011(1)(a), instructed the jury that “[a]

person commits the crime of Assault in the First Degree when, with intent to inflict great

bodily harm, he or she assaults another with any deadly weapon or by any force or 

means likely to produce great bodily harm or death.”7 “Great bodily harm” was defined 

as “bodily injury that creates a probability of death, or which causes significant serious 

permanent disfigurement, or which causes a significant permanent loss or impairment of 

the function of any bodily part or organ.” See RCW 9A.04.110(4)(c). Intent is present 

when a person “acts with the objective or purpose to accomplish a result which 

constitutes a crime.” RCW 9A.08.010(1)(a). Specific intent may be inferred “as a 

 7 Under RCW 9A.36.011(1)(a), “[a] person is guilty of assault in the first degree if he or 

she, with intent to inflict great bodily harm: . . . [a]ssaults another with a firearm or any deadly 

weapon or by any force or means likely to produce great bodily harm or death.”
No. 84181-5-I/16

16

logical probability from all the facts and circumstances.” State v. Wilson, 125 Wn.2d 

212, 217, 883 P.2d 320 (1994).

Viewed in the light most favorable to the State, it can be inferred from these facts 

and circumstances that Johnson used the knife in a manner readily capable of causing 

great bodily harm and acted with specific intent to inflict great bodily harm. The 

evidence showed that Johnson stabbed Morgan in the chest, puncturing his lung and 

causing a pneumothorax. See State v. Langford, 67 Wn. App. 572, 587, 837 P.2d 1037 

(1992) (stabbing a person in the chest constituted great bodily harm). Morgan was 

airlifted to Harborview in “full code” due to the nature of his injuries. And Dr. Stewart 

testified that Morgan’s injuries could have been life threatening if the wounds were 

deeper. 

D. Insufficiency of the Evidence – Assault in the Second Degree

Next, Johnson argues that the State failed to prove beyond a reasonable doubt 

that he was armed with a deadly weapon during the assault against Swogger. 

The court instructed the jury that “[a] person commits the crime of Assault in the 

Second Degree when he or she assaults another with a deadly weapon.” See RCW 

9A.36.021(1)(c). And, consistent with RCW 9A.04.110(6), “deadly weapon” was defined 

as “any weapon, device, instrument, substance, or article, which under the 

circumstances in which it is used, attempted to be used, or threatened to be used, is 

readily capable of causing death or substantial bodily harm.”8 The instructions further 

 8 Under RCW 9A.04.110(6), a “deadly weapon” includes any “weapon . . . which, under 

the circumstances in which it is used, attempted to be used, or threatened to be used, is readily 

capable of causing death or substantial bodily harm.” 
No. 84181-5-I/17

17

stated that a knife having a blade longer than three inches is a deadly weapon, and 

whether a shorter knife is a deadly weapon is a question of fact for the jury to decide.

Johnson points out that Swogger and Grantham did not see a knife in Johnson’s 

hand while he was coming up the stairs. He also points out that no knife was visible in 

his hand on a security video that partially captured the event. But Swogger testified that

the knife was clearly visible in Johnson’s hand while Johnson was walking through the 

parking lot after stabbing Morgan and confronting Swogger. And Grantham testified 

that after Johnson stabbed Morgan and ran towards Swogger’s apartment, Grantham 

saw Johnson at the top of the stairs with a knife. Viewed in the light most favorable to 

the State, the evidence is sufficient to establish that Johnson was armed with a deadly 

weapon during the assault against Swogger. 

E. Report of Proceedings

Lastly, Johnson contends that the verbatim report of proceedings before this 

court “is flawed and incomplete in violation of due process of law and Johnson’s State 

Constitutional right to an appeal.” He contends that “a plethora of portions of the 

transcripts were missing key arguments, discussions and objections and that other 

portions inaccurately reported what did occur.” Johnson asserts that his counsel 

compared the written transcripts to an audio recording and agreed that there were 

errors, but counsel nevertheless refused to take any action. 

Johnson did not exercise his right to file an objection to the report of proceedings 

under RAP 9.5(c). And he offers no evidence in support of this claim. To the extent 

Johnson wishes to raise a claim of ineffective assistance of counsel implicating matters 
No. 84181-5-I/18

18

outside the record, the remedy is to bring a personal restraint petition with evidence in 

support of the claim. State v. Turner, 167 Wn. App. 871, 881, 275 P.3d 356 (2012). 

Affirmed.

WE CONCUR: