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FILED DEC. 9,2014 In the Office ofthe Clerk ofCourt W A StateCourtofAppeals, Division III 

# I**~** IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE 

# 1 STATE OF WASHINGTON, ) ) 

### No. 32297-1-III Respondent, ) ) 

### v. ) ) TODD R. JOHNSON, ) UNPUBLISHED OPINION ) Appellant. ) SIDDOWAY, C.J.

- Todd Johnson appeals his conviction offourth degree assault, challenging the trial court'srefusal to give an instruction on defense ofproperty. He claims hewas defending his dogs from harm and his real property from malicious trespass at thetime he struck the victim. Review ofthe recordreveals, however, that the only evidentiary support for lawful use offorce was in arguable self-defense. The trial court instructed thejury on self-defense butthejurors evidently believedthe victim, not Mr. Johnson. Because the evidence did not support a defense ofproperty instruction, and for the additional reason that Mr. Johnson's lawyerrelented andultimately agreed tothe instruction that is now challenged, we affIrm.

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# I i I No. 32297-1-III 

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### ,**~** State v. Johnson ! J 

### I FACTS AND PROCEDURAL BACKGROUND On August 11,2011, Todd Johnson fought with Charles Haltom, who had been canoeing near Mr. Johnson's residential property on Bay Lake. Mr. Haltom endedup with broken ribs. Following an investigation by the Pierce County sheriff's department, the Pierce County prosecutor charged Mr. Johnson with second degree assault. Attrial, witnesses providedtwo diametrically different versions ofwhat had occurred. In the State's case, Mr. Haltom testified that on the August afternoon ofthe assault, he had loaded his canoe with a weighted buoy, an innertube, and a cooler, and paddled his canoe out onto Bay Lake, thepublic lake onwhich he lived. He then cast his inner tube into the water and began to float and drink a few beers. After about three hours, he got back in his canoe and was paddling home when he heard dogs barking as he passed a boat dock. One dog entered the water and approached his canoe. A woman on the shore yelled at him, calling him "'whitetrash,'" and telling him to '''[g]et out ofhere.'" Report ofProceedings (RP) (Sept. 11,2012) at 33. Mr. Haltom responded to the woman, whom he later identified as Valerie Johnson, the defendant's wife, thathe was canoeing on a public lake and she could not orderhim to leave. He also toldherthat her dogs were being aggressive. Ms. Johnson told him she was going to call the sheriffand angrily went inside herhome. Mr. Haltom assumedthat she


### was going to call the sheriffand decided to remain in his canoe and wait for law 

### 2No. 32297-l-1II State 

### v. Johnson

enforcement officers to arrive. As he explained at trial, he had neverhad his rightto canoe

onthe lake challenged before, and he wantedto waitfor the sheriffand settle the matter. Mr. Haltom testified thatMs. Johnsonthenre-emerged from the house, this time with a gun in her hand. She yelled that shehad called the sheriffand herhusband. Mr. Haltomresponded "good," "I want the sheriffhere." 

### Id. at 47. She soon left again. Mr. Haltom continued to awaitthe sheriffs arrival, paddling to stay in place, with his backto the Johnsons' dock, whenheheard the footsteps ofsomeone running onthe dock and a big splash. He turned his canoe and saw someone whomhe later identified as 

### Mr. Johnson swimmingrapidly toward him. When he reached the canoe, 

### Mr. Johnson grabbed its bowline and began to bring it to shore. Once the canoe was close enough for 

### Mr. Johnson to stand, he flipped 

### Mr. Haltom out ofthe canoe and began to beathim. 

### Mr. Haltom said thathe pleaded for his life as Mr. Johnson held him underwater with one hand and punchedhim withthe other. He claims that Mr. Johnson hithim 15 or 20 times. Eventually 

### Mr. Johnson stopped beating 

### Mr. Haltom and told himto "[g]etout of here." 

### Id. at 66. 

### Mr. Haltom managed to canoehome and called the sheriff. He was admitted to the hospital, where he was treated for broken ribs and blood in his urine. Mr. Johnson's version ofevents was thathe was driving toward his home with family members he had picked up from the airport whenhe received a call from his wife. Accordingto him, she said there was a man who had arrived by canoe who was ontheir property "jabbing at the dogs and trying to bait [them]." RP (Sept. 18,2012 Test. of 3No. 32297-1-III State 

### v. Johnson

Todd Johnson) at 26. He told herto call 911. A few minutes later, Ms. Johnson called Mr. Johnson again, this time telling himthatMr. Haltom was beatingtheir dogs with an
oar. This time, Mr. Johnson told herto get a handgun and let the man know she was armed. Upon arriving home, Mr. Johnson said he saw Mr. Haltom standing onhis property near a beached canoe atthe shoreline, "tomahawking"the Johnsons' dogs. Mr. Johnson described "tomahawking" as the act of"[h]olding a stick with two hands onthe oar, and [chopping] overheard with both hands." Id. at 34. Mr. Johnson testified thathe yelled at Mr. Haltom to stop hitting the dogs and ran at full speedto where Mr. Haltom was standing. He claims that as he got close, he was going to run into the dogs so he tried to slow down, tripped, and fell next to the canoe. He testified that as he tried to standup, Mr. Haltom attacked him with the paddle. According to Mr. Johnson, a struggle ensued overthe paddle, with both swinging at and punching one another. He claims they eventually agreed to stop fighting. Mr. Johnson's wife, his stepfather, andhis stepbrother all testified attrial and for the mostpart corroboratedMr. Johnson's version ofevents. Duringtrial, there were discussions of juryinstructions outside the presence ofthe jury. Boththe State andMr. Johnson submitted proposed instructions. A packet of replacement and supplemental instructions submitted by the State included one with the handwritten caption, "Self-Defense etc. (IF APPLICABLE)." Clerk's Papers (CP) at4. Itwas adapted from WPIC 17.02, entitled "Lawful Force-Defense ofSelf, Others, 4No. 32297-1-III State 

### v. Johnson Property." 11 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 17.02, at 253 (3d ed. 2008) (WPIC). It set forth all ofthe alternative defenses covered by thatpattern instruction, including defense ofproperty and defense against malicious trespass. l Mr. Johnson did not submit a defense ofproperty instruction. The final conference on thejury instructions tookplace on the morning ofthe last day oftrial. Atthat time, the prosecutor asked the trial court to remove from his proposed lawful force instruction any reference to defense ofothers or defense ofproperty, arguing that there was no evidence to support either defense. According to the prosecutor:

1The State's proposed instruction stated: Itis a defense to a charge ofAssaultthatthe force used was lawful as defined in this instruction. The use offorce upon or toward the person ofanother is lawful when used by a person who reasonably believes thathe is about to be injured, by someone lawfully aiding a person who he reasonably believes is about to be injured, in preventing or attempting toprevent an offense againstthe person, and when the force is not more than is necessary. The use offorce upon or towardtheperson ofanother is lawful when used in preventing or attempting to prevent a malicious trespass or other malicious interference with real orpersonal property lawfully in that person's possession, and whenthe force is not more than is necessary. Theperson using the force may employ such force and means as a reasonably prudent person would use under the same or similar conditions as they appearedto the person, taking into consideration all ofthe facts and circumstances known to the person at the time ofthe incident. ' The State has the burden ofproving beyond a reasonable doubt that the force used by the defendant was not lawful. Ifyou find that the State has notproved the absence ofthis defense beyond a reasonable doubt, it will be your duty to return a verdict ofnot gUilty. CP at 4. 5I i No. 32297-1-II1 

# i ! State 

### v. Johnson 

# I Clearly, an assault takes place. I don'tthink thatthe defense is 

# I disputing that Todd Johnson struckthe victim. Andthe testimony was very clearthat he was doing itto protecthimself. Valerie was nowhere around. The dogs weren't around atthe pointthat the assault tookplace. There was no defense ofproperty.... However [Charlie] ended up in the water, ... 

# I by the defense theory [he] was coming at the defendant, swinging, and that was why the defendant swung back. That is theirtheory ofthe case.

. .. And that is simply self-defense, rather than defense ofothers or defense ofproperty. RP (Sept. 19,2012 Jury Instruction Arg.) at 3-4. Mr. Johnson's lawyer opposed the State's request to remove portions ofthe proposed instruction. He argued that "there is evidence that the confrontation occurred because the-Mr. Haltom, the alleged victim, was swinging at the dogs, the property of Mr. and Ms. Johnson." 

### ld. at 4. Continuing, he argued: [A]t the time that he's confronting the alleged victim at the water line, he is there for three reasons: To deal with the trespass that's on his property; to deal with the assault that's occurring on his dogs; and to deal with the threats that he made against his wife

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. . . We're entitledto argue all ofthat. That is all something that can be instructed, and there we go. 

### ld. at 5. When the court responded by asking Mr. Johnson's lawyer ifhehad any case law that would help the court with its ruling, the lawyerresponded thathe did not, because the issue hadjustcome up. Having heard from the lawyers, the court said that its ruling "atthis time" was to leave out instruction about a malicious trespass orinterference with property because it wouldbe confusing and "at least to this time, there is no evidence that the assault 

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### No. 32297-1-111 

### State v. Johnson

occurred based on that." 

### Id. at 10-11. He pointed out thatlimiting the instruction in that

manner would not preventMr. Johnson's lawyer "from arguing all ofthe circumstances known to the person at the time ofthe incidence. And clearly, there's evidence in the record." 

### Id. at 11. He concluded that "unless there's some case law to give me more instruction, this is what I believe is the proper instruction." 

### Id. Mr. Johnson's lawyer replied, "I will prepare-ifwe need to, I'll address the issue at lunchtime and have something at 1:30." 

### Id. Laterthat morning, the following exchange took place outside the presence ofthe jury, during a break from the testimony ofthe last rebuttal witness: [THE COURT:]

...Let's bring thejury back in. I have the instructions ready, so maybe we should go ahead and

... copy the instructions now. I can instruct thejury. [DEFENSE COUNSEL]: And Your Honor, I'vebeen thinking about it. I actually don'tthink-I thinkthat I'm fine with the instruction the way that the Court has rewritten the self-defense instruction. It 

### allows me to get what I want. I don'tthink it's thatTHE COURT: Okay. So you're withdrawing your objection. [DEFENSE COUNSEL]: I'll withdraw my-Ijustwantto make-I am actually happy to move along. I don'tthink the case law is going to give me anything. It gives me everything I wantto argue. It's-we're prepared to go, and I think I'dratherjusthave that ready to go. So Ijust want to make sure the Court's aware. RP (Sept. 19,2012 Excerpt ofProceedings) at 48-49. Ajury acquitted Mr. Johnson ofthe second degree assault charge, but found him guilty ofthe lesser degree offense offourth degree assault. He appeals.

7No. 32297-1-III State v. Johnson

ANALYSIS Mr. Johnson's only assignment oferror on appeal is to the trial court's "den[ial of] 

### Mr. Johnson's request for 'defense ofproperty' language injury instruction 

### # 15." Br. of Appellant at 1. The State responds that (1) by failing to propose a defense ofproperty instruction, 

### Mr. Johnson failed to preserve error, citing RAP 2.5(a); (2) Mr. Johnson affirmatively waived orinvited errorby his statements; and (3) in any event, the trial court did not abuse its discretion inrefusing to give the instruction, since defense of property was not Mr. Johnson's theory and was not supported by the evidence. As to the RAP 2.5(a) issue, we conclude that initially, at least, Mr. Johnson adopted the State's lawful force instruction and objectedto removing the defense of property language. The fact thathis lawyerhad adequately stated an objection at the final instruction conference is apparent from the fact that laterthat morning-afterMr. Johnson's lawyer told the courtthatthe instruction as modified "allows me to get what I want"-thetrial court said, "Okay. Soyou're withdrawingyour objection." RP (Sept. 19,2012 Excerpt ofProceedings) at 48 (emphasis added). In any event, RAP 2.5(a) is discretionary andwe chooseto consider Mr. Johnson's appeal. Ofthe two issues that remain, we first address the sufficiency ofthe evidence to support giving the State's lawful force instruction as originally proposed. We conclude that the trial court correctly refused to instruct thejury on defense ofproperty or malicious trespass ofproperty. We next address the issue ofwaiver or invited error and 8No. 32297-1-III State 

### v. Johnson

agree with the State that ifthere was error, it was invited. I The defense was notsupportedby the evidence Mr. Johnson contends that one ofhis theories attrial was thathe was defending property: his dogs. He testified that when he sawMr. Haltom "tomahawking" his dogs with a canoe paddle, he ran to protectthem from further injury. He argues that under RCW 9A.16.020, his use offorce would also have been lawful to prevent malicious trespass and interference with real property, which he believed hadtakenplace given his wife's reports that Mr. Haltom had been on the property and refused to leave. Jury instructions as a whole must correctly apprise thejury ofthe law and enable a defendantto argue his defense theory. State v. Rice, 102 Wn.2d 120, 123,683 P.2d 199 (1984). "A criminal defendant is entitled to an instruction onhis or her theory ofthe case ifthe evidence supports the instruction." State v. Werner, 170 Wn.2d 333,336,241 P.3d 410 (2010). Failureto so instruct is reversible error. State v. Harvill, 169 Wn.2d 254, 259,234 P.3d 1166 (2010). To determine whether a defendant is entitledto an instruction on a lawful use of force, "thetrial court must view the evidence from the standpoint ofa reasonably prudent person who knows all the defendant knows and sees all the defendant sees." State v. Read, 147 Wn.2d 238,242,53 P.3d 26 (2002). In evaluating a self-defense claim, therefore, the court "applies both a subjective and objective test." 

### Id. at 242-43. Stated differently, a defendant bears the initial burden ofpointingto evidence showing that he 9No. 32297-1-III 

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### v. Johnson

"had a good faith beliefin the necessity offorce and that thatbeliefwas objectively reasonable." 

### State v. 

### Dyson, 90 Wn. App. 433, 438-39, 952 P.2d 1097 (1997). The standard under which this court reviews a trial court's refusal to instructthe jury on self-defense depends on whetherthe reason for its refusal was based on fact or law. Where a trial court refuses to instruct on a defense because it finds insufficient evidence to support it-an issue offact-the standard ofreview is abuse ofdiscretion. 

### Read, 147 Wn.2d at 243. When Mr. Johnson was questioned by his lawyer, he explained that he tripped while running toward Mr. Haltom at a pointwhere he was about to run into his dogs, causing the two dogs to take offin opposite directions: Q.

. .. [W]hen youran towards [Mr. Haltom], what's the nextthing that happened? A. The dogs saw me coming and one wentthis way. (Indicating.) 

### 'Q. One wentthis way? A. I'm sorry. Fritzie went to, looking at the picture, the left side and Diesel went the right side. And I was going to run into them, and I tried to slow down and I did a face plant, I mean, right in front ofthe canoe. I bumped the canoe, so I made the canoe move, rock. Q. SO you-you fell? 

### A. Yeah. RP (Sept. 18,2012 Test. ofTodd Johnson) at 36. In Mr. Johnson's testimony about what happened thereafter, his explanation for every use offorce against Mr. Haltom was to defend 

### himselJfrom harm. He testified, for example, "[A]s I was standing up, Ijustblocked a-the oar coming down in my face," id. 10No. 32297-1-111 State 

### v. Johnson

at 37; next, "[W]hen 1blocked [the oar], 1can'tremember ifhe came down again or if1 grabbed it that time," id. at 39; next, "I got ahold of[the oar]
... 1twisted my body to the right

... [a]nd the-theboat turned sideways, and he fell," id. at 39-40; next, "And then hejumpedup and started roundhousing me ... [s]winging with everything he had," id. at 41; next, "Whenhe was swinging at me, 1was either ducking this way or ducking this way. (Indicating.)," id.; next, "He would lead with his left and then really over-swing with his right," in response to which "Ireturned punches," id. at 42; next, "[H]e would throw two [punches], 1would throw two. He would throw two, 1wouldthrow two. He would throw two, 1would throw two," id.; and finally, "The fight stopped with a blow to his midsection, and he let out a gasp ofair and said, 'Okay. I'll leave.'" fd. at 42-43. Mr. Johnson called his wife, his stepfather, and his stepbrother as witnesses in the defense case. All three claimed to have witnessedMr. Haltom's fight with Mr. Johnson, all three described Mr. Johnson as acting to defend himselfas Mr. Haltom attacked him, and

none mentioned that either dog was in the vicinity or imperiled by the two men's fight. Theprosecutor and the trial court recalled the testimony correctly; the dogs were out ofthe picture at the time ofthe assault. Defense ofproperty is notthe same as retaliating against someone who has already damagedproperty; it is notthe same as acting in revenge. '" [T]he right ofselfdefense does not imply the right to attack in the first instance orpermit action done in retaliation orrevenge.'" State v. Janes, 121 Wn.2d 220,240,850 P.2d 495 (1993) 11i

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# I No. 32297-1-III 

### State 

### v. Johnson (alteration in original) (quoting 

### People v. Dillon, 24 

### IlL 2d 122, 125, 180 N.E.2d 503 

### (1962)); accordState v. 

### Studd, 137 Wn.2d 533,550,973 P.2d 1049 (1999). The fact that Mr. Johnson had been told ofan earlier "baiting" ofhis dogs was not a basis for a defense ofproperty instruction. As for malicious trespass, the "reasonable force" that may be exercisedto prevent

one from trespassing includes confinement ofthe trespasser orputting him in fear of physical harm. 16 DAVID K. DEWOLF & KELLER W. ALLEN, WASHINGTON PRACTICE: TORT LAW AND PRACTICE 

### § 14.23, at 593 (4th ed. 2013) (citing RESTATEMENT (SECOND) OFTORTS 

### § 80 (1965)). Ifaproperty owner responds with greater force because ofan assault or fear ofassaultby the trespasser, then he is engaged in self-defense, not defense against a trespass, and his right to self-defense applies. 

### See id. Mr. Johnson described only acts ofself-defense, thejury was instructed onthe defense ofself-defense, andthejury evidently did not believe Mr. Johnson. The trial court's instruction 15 adequately set forth the defenses that were supported by the evidence. 

### II Waiver or invited error Alternatively, the State contends thatMr. Johnson affirmatively waived his initial objection to the narrowing ofthe lawful force instruction. The invited error doctrine prohibits a party from setting up an error at trial and then complaining ofthe error on appeal. 

### State v. Wakefield, 130 Wn.2d464,475,925 P.2d 183 (1996). A party may invite errorby affirmatively assenting to it, materially contributing to it, orbenefiting 12No. 32297-l-III State 

### v. Johnson

from it. State v. Momah, 167 Wn.2d 140, 154, 217 P.3d 321 (2009). "Underthe doctrine ofinvited error, even where constitutional rights are involved, we are precluded from reviewingjury instructions when the defendant has proposed an instruction or agreed to its wording." State 

### v. Winings, 126 Wn. App. 75,89, 107 P.3d 141 (2005). Atthe time that

### Mr. Johnson's lawyer originally objected to the narrowing ofthe lawful force instruction, the trial courtpointed out to himthat even as narrowed, the instruction would permithimto argue the circumstances known to Mr. Johnson as a basis for the amount offorce he used in self-defense. In its final form, the instruction included the statementthat [t]he person using the force may employ such force and means as a reasonably prudent person would use under the same or similar conditions as they appeared to the person, taking into consideration all ofthe facts and circumstances known to the person at the time ofthe incident. CP at 32. In the trial court's last discussion withthe lawyers before instructing thejury, Mr. Johnson's lawyer withdrew his objection to the narrowed lawful force instruction, having realized, itappears, thatthe trial courthad given him all the instruction to which he was entitled in light ofthe evidence. 

### Mr. Johnson now argues thathis lawyer stopped short ofwithdrawing his objection by saying only, "I'll withdraw my-" not "I'll withdraw my objection." Reply Br. ofAppellant at 5. This is hairsplitting. Itis clear from all thatMr. Johnson's lawyer



### 13No. 32297-1-111 State v. Johnson

said that he was withdrawing his objection. After all, among the things he said was, "I'm fine with the instruction the way thatthe Court has rewritten the self-defense instruction. Itallows me to get what 1want." RP (Sept. 19,2012Excerpt ofProceedings) at 48. That is all that a party is assured under the law. If

### Mr. Johnson's lawyer's concession was not classic invited error, it is only because it was made very late, afterthe trial court had already finalized its instructions. One cannot say, however, that the court would nothave modified the instruction had 

### Mr. Johnson's lawyer not made it clear he was satisfied with the instruction as given. For this additional reason, Mr. Johnson's appeal fails. Affirmed. A majority ofthe panel has determined that this opinion will not be printed in the Washington Appellate Reports but it will be filed for public record pursuantto RCW 2.06.040.

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# C-J=

WE CONCUR:

Lawrence-Berrey, J. 14 

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