### FILED OCTOBER21, 2014 IntheOffice oftheClerkofCourt WA State Court ofAppeals, Division ill INTHE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISIONTHREE STATE OFWASHINGTON, ) ) No. 31386-7-III Respondent, ) ) 

### v. ) ) MERSADEZE SIDNEYRIOJAS, ) UNPUBLISHED OPINION ) Appellant. ) SIDDOWAY, C.J.

- Mersadeze Riojas was being questionedby SergeantMichael Moses outside a latenightpartyaboutpossible criminal activitybypartygoers. Angered bythe line ofquestions, she walked away, ignoring his commandthat she was not free to leave. Whenhe fmnly grabbedherupper annto preventherfrom leaving, she swung around andhithim. She was convicted following ajurytrial ofthird degree assault ofa law enforcement officer. Ms. Riojas sought to defend onthebasis that the sergeant's detention ofherwas unlawfulunder 

### Terry v. Ohio;l that as a result, he was notperforming his "official duties" at the time she hithim; andthatherresponse to being grabbedwas aninstinctive act ratherthan an intentional one. She argues that the State's evidence was insufficient and that several evidentiary and instructional errors bythe trial courtrequire reversal.

1 392 U.S. 1,21,88 S. Ct. 1868,20 L. Ed. 2d 889 (1968).No. 31386-7-II1 State v. Riojas
Substantial evidence supported the State's case and we find no error or abuse of discretion. We affirm. FACTS AND PROCEDURAL BACKGROUND At about one a.m. on a summer morning in 2012, several Walla Wallapolice officers responded to a report ofa party at a warehouse involving "under-aged drinking, fighting[,] and possibly a gun." Report ofProceedings (RP) at 115. Upon arriving at the warehouse, officers saw several vehicles parked outside. They saw open beer cans and bottles and could smell alcohol. They could hearpeople yelling inside the warehouse (voices they perceived to be female) and the sound ofglass breaking. Sergeant Michael Moses, one ofthe responding officers, was speakingwith a young man who had emerged from the warehouse to object thatthe officers were trespassing and needed to leave when a young woman, later identified as Bailee Culver,
ran out ofa door located on a loading dock. Apparently intoxicated and unaware that she
was above ground level, Ms. Culver ran offthe edge ofthe dock and immediately fell, tumbling forward and yelling, '''ThoseMexican girls are chasing me and
...throwing bottles at me and I don't know why.'" RP at 122. The defendant, Mersadeze Riojas, ran outthe door close on the heels ofMs. Culver andjumped offthe loading dock, landing
onher feet. Officer Ignacio Colin was standing inthe immediate vicinity and as Ms. Riojas straightened up, still headed for Ms. Culver, he grabbed and stopped her, stating,

,,,You don't want to do that. You don't want to go after her and assault her in front ofa 2

### No. 3 1 386-7-III State v. Riojas police officer.'" RP at 85. Officer Colin continued talking to Ms. Riojas, who calmed down. According to Officer Colin, Ms. Riojas "appearedto be highly intoxicated." RP at 

### 86. When he asked Ms. Riojas why she had been chasing Ms. Culver, she stated that Ms. Culverhad been going afterher friend and she did not like that, so she went afterMs. Culver. Ms. Riojas claimed to have recently turned 21 and told the officer she had identification in her car; the officerthen escorted herto her car, where they continued talking. As Officer Colin was finishing up his conversation with Ms. Riojas, Sergeant Moses approachedthe two. Just as Sergeant Moses reachedthem, Ms. Riojas stated that Ms. Culver had been chasing her with a knife. Officer Colin tookthe opportunity ofthe arrival ofSergeant Moses-his superior-to leave, in orderto investigate other partygoers and their cars. As Officer Colin walked away, SergeantMoses askedMs. Riojas why she hadbeen fighting, to which Ms. Riojas responded that she had not been fighting. Ms. Riojas would latertestify that the sergeant's questions were "[a]ccusatory

... so I told him believe what he wants, obviously he is white, he is going to believe [Ms. Culver] because she is white." RP at 261. Ms. Riojas later admittedthat she lied when she said thatMs. Culver had a knife. Unwilling to talk further with the sergeant, Ms. Riojas said, '" Whatever
... fuck this,'" and began to walk away. RP at 112. Sergeant Moses told Ms. Riojas that she was 

### 3No. 31386-7-111 State v. Riojas

not free to leave, to which sheresponded, '''Fuckyou,'" and continued on her way. 

### ld. at 113. The sergeant caughtup with Ms. Riojas and firmly grabbed her right upper arm. Ms. Riojas immediately swung around and hit him in the lip with her left hand. Upon being struck, Sergeant Moses pulledMs. Riojas to the ground and toldher she was under arrest for assaulting a police officer. Another officer assistedthe sergeant in handcuffing Ms. Riojas and walking her to the patrol car. She resisted the officers' movements, screamingthatthey were hurting her. Ms. Riojas was the only partygoer arrested that night and was later charged with assault inthe third degree under RCW 9A.36.031(l)(g), which criminalizes "[a]ssau1t[ing] a law enforcement officer orother employee ofa law enforcement agency who was performing his or her official duties at the time ofthe assault." The morning after Ms. Riojas's arrest, Detective Miguel Sanchez wentto thejail and spoke with her. Accordingto the detective, when he told Ms. Riojas that she had. been arrested for assaulting an officer, she laughed and said, "'I didn'thit anybody. Who said that?'" RP at 178. As he was leaving, Ms. Riojas told the detective, '''I can't remember anything.'" 

### ld. Ms. Riojas filed a pretrial KnapstacP motion to dismiss, arguing thatbecause Sergeant Moses had neitherprobable cause to arrest nor reasonable suspicion ofcriminal

2 State v. Knapstad, 107 Wn.2d 346, 729 P.2d 48 (1986). 4No. 31386-7-III State 

### v. Riojas activity sufficient tojustify a temporary detention, no rational trier offact could find that he was performing his official duties at the time ofthe assault. She argued that no reasonable trier offact could decide that Ms. Riojas was not acting in self-defense. The trial court denied the motion. In a letter opinion, 

### itfound that detentionwas lawful because "[t]here were 'articulable objective reasons to suspect' that Ms. Riojas was engaged in criminal activity" and "[t]hose facts are not in dispute." Clerk's Papers (CP) at 20. The State then moved in limine to exclude any evidence or argumentthat Ms. Riojas acted in self-defense orthat her detention or arrest was unlawful. Itpointed out thatthe lawfulness ofpolice conduct is not an element ofthe crime charged and that there
was no evidence to support an imminent threat ofserious harm to Ms. Riojas required to establish legitimate use offorce in self-defense against a police officer. It argued that an order in limine would ensure thatthejurors would not hear "impermissible evidence." CP at 22. The court grantedthe motion, statingthat Ms. Riojas could make an offer of proofto create a record for appeal and could, ifshe wished, move for reconsideration. Midway through the trial, Ms. Riojas renewed herrequest that the court dismiss the assault chargebased onthe absence ofevidence thatthe sergeant was performing his official duties. The trial court again refused to dismiss. Ms. Riojas proposedjury instructions,one ofwhich would have informed thejury that "[a]n unlawful detention is by definition notpart oflawful police duties," based on a 5

# 1 

# I I No. 31386-7-111 State 

### v. Riojas

statement made in this court's decision in State v. Barnes, 96 Wn. App. 217, 225, 978 P.2d 1131 (1999). CP at 30. Another explained that force used "by a person who reasonably believes that she is aboutto be injured or in preventing or attemptingto prevent an offense againstthe person" was a defense to a charge ofthird degree assault. CP at 3 5 (citing 11 WASHINGTON PRACTICE: WASHINGTON PATTERNJURY INSTRUCTIONS: CRIMINAL 17.02 (3d ed. 2008) (WPIC)). Alternatively, Ms. Riojas asked thatthe court give WPIC 17.02.01, the pattern instruction for lawful force in resisting detention. The court refused to give any ofthe three instructions. The trial court did instructthejury onthe definition ofassault, using the pattern instruction set forth in WPIC 35.50. Amongthe definition language included in the instruction was that "[a]n assault is an intentional touching or striking
... ofa person, with unlawful force." CP at 44 (Instruction 5). Ms. Riojas did not object to the instruction. Thejury found Ms. Riojas guilty as charged. She appeals. ANALYSIS Ms. Riojas assigns error to the trial court's (1) refusal to dismiss the charge for insufficient evidence, (2) exclusion ofevidence that she acted in self-defense and her training in self-defense, (3) alleged violation ofher constitutional right to present a defense, (4) refusal to give Ms. Riojas's proposed instruction on self-defense, and (5) use ofthe undefined and allegedly vague term "unlawful force" in its instructions to thejury. 

### 6No. 3 I386-7-III State v. Riojas
We begin by summarizing Washington law ontwo matters: first, the construction ofthe "performing official duties" element ofthird degree assault ofa law enforcement officer, and second, the circumstances under which a person may lawfully use force in self-defense against a law enforcement officer. We then tumto Ms. Riojas's assignments oferror. I. LAWENFORCEMENT OFFICERS' PROTECTION FROMASSAULT A. "Performance ofofficial duties" under RCW 9A.36.031(1)(g) RCW 9A.36.03l includes two means ofcommitting third degree assault against a law enforcement officer engaged in performing official duties at its subsections (1)(a) and (l)(g). RCW 9A.36.03l(1)(g) is thebroader ofthe two. See State v. Ross, 71 Wn. App. 837,843,863 P.2d lO2 (1993) (characterizing subsection (g) as "the broader and more inclusive subsection"). While RCW 9A.36.03l(1)(a) applies to a defendant's assault preventing orresisting "the lawful apprehension or detention ofhimself, herself, or anotherperson," RCW 9A.36.03l(1)(g), with which Ms. Riojas was charged, provides: (I) A person is guilty ofassault in the third degree ifhe or she, under circumstances not amounting to assault inthe first or second degree: (g) Assaults a law enforcement officer or other employee ofa law enforcement agency who was performing his or her official duties at the time ofthe assault. In State v. Mierz, 127 Wn.2d 460,901 P.2d 286 (1995), the meaning of "performinghis or her official duties" as used in RCW 9A.36.03l(I)(g) was squarely
7No.31386-7-III State v. Riojas presented in a case involving a defendant charged with assaulting wildlife officers. The officers entered Mierz's property to capture coyotepupsthat he possessed illegally. He arguedthat the officers had entered his property without a warrant in violation ofthe Fourth Amendment, were making an illegal arrest, andtherefore could not have been performing official duties within the meaning ofthe statute. StatingthatMierzproposed
an "overly restrictive definition ofthe term 'official duties,'"the court said: We hold that "official duties" as used in RCW 9A.36.031(1)(g) encompass all aspects ofa law enforcement officer's good faith performance ofjobrelated duties, excluding conduct occurring when the officer is on a frolic of his or her own. [State v.] Hoffman, 116 Wn.2d [51,] 99-100[, 804 P.2d 577 (1991)]. RCW 9A.36.031(1)(g) includes assaults upon law enforcement officers in the course ofperformingtheir official duties, even ifmaking an illegal arrest. 127 Wn.2d at 479. Elsewhere, the court elaborated on its earlier decision in Hoffman, which had articulated a rule "adopt[ing] a liberal view of'official duties'
... for purposes of charging a person with a crime." Id. at 473. InHoffman, the defendant shot a law enforcement officer inthe back and claimed he could not be convicted ofaggravated first degree murder becausethe officerwas effecting an illegal arrest. RCW 10.95.020(1) defines aggravated first degree murder as includingthe first degree murder ofa law enforcement officer "who was performing his orher official duties at thetime ofthe act resulting in death." As noted inMierz, Hoffman held that even an officer effecting an

8No. 31386-7-III State v. Riojas

arrest withoutprobable cause may still be engaged in official duties provided the officer is not on a frolic ofhis or her own. The unanimous court inMierz stated that it would "not condone violence against law enforcement officials," including that it would not "adopt a rule
...thatpermits citizens to claim a right ofself-defense against law enforcement officials who are performing their duty in good faith and who do not place citizens in an imminent threat of serious bodily injury." 127 Wn.2d at 482. It observed that "'the officer is entitled to be protected by the law from assaulC" Id. at 473 (quoting Hoffman, 116 Wn.2d at 100). B. Lawful use offorce in resisting arrest When a defendant is charged with assault ofa layperson, it has long beenthe law in Washington that "self-defensemay bejustifiedby apparent danger to the person claimingthe benefit ofthe defense, as opposed to actual danger." State v. Bradley, 141 Wn.2d 731, 736, 10 P.3d 358 (2000); RCW 9A.l6.020(3) (setting forth the general test for self-defense). In orderto establish self-defense thejurymust "find only that the defendant reasonably believed that he or she was in danger ofimminent harm." State 

### v. Riley, 137 Wn.2d 904, 909, 976 P.2d 624 (1999). A different rule applies where a defendant claims self-defense in using force against a law enforcement officer. Bradley, 141 Wn.2d at 737. The policy rationale for imposing a differentrule was first articulated in State v. Westlund, 13 Wn. App. 460,467, 536 P.2d 20 (1975): 9No. 31386-7-111 

### State 

### v. Riojas [T]he arrestee's right to freedom from arrest without excessive force that falls short ofcausing serious injury or death canbeprotected and vindicatedthrough legal processes, whereas loss oflife or serious physical injury cannotbe repaired in the courtroom. However, in the vast majority ofcases ... resistance and intervention make matters worse, notbetter. They create violence where none would have otherwise existed or encourage further violence, resulting in a situation ofarrest by combat. In 

### State v. 

### Holeman, the Washington Supreme Court adopted the 

### Westlund court's analysis, explainingthat'" 

### [0]rderly and safe law enforcement demands that an arrestee not resist a lawful arrest ...unless the arrestee is actually about to be seriously injured or killed.'" 103 Wn.2d 426, 430, 693 P.2d 89 (1985) (quoting 

### Westlund, 13 Wn. App. at 467). 

### Ross, 71 Wn. App. at 843, held thatthe same standard for self-defense against a law enforcement officer established in

### Holeman and 

### Westlund applies to the third degree assault ofa police officer charged under RCW 9A.36.03l(1)(g). As a result, ajury is properly instructed in a case such as this that the use offorce upon ortoward a law enforcement officer 'His only lawful when
... used by a person who is 

### actually about to be seriously injured.'" Id. at 840. 

### Westlund, Holeman, and

### Ross involved lawful arrests. The Washington Supreme Court extended the rationale for a heightened standard for claiming self-defense to unlawful arrests in 

### State v. 

### Valentine, 132 Wn.2d 1,20-21,935 P.2d 1294 (1997). As with lawful arrests, the court stated that "although a person who is being unlawfully arrested has a right
...to use reasonable and proportional force to resist an attemptto 10No. 31386-7-III State v. Riojas
inflict injury on him or her during the course ofan arrest, that person may notuse force against the arresting officers ifhe or she is faced only with a loss offreedom." 

### Id. at 21. 

### It observed that ifit were the rule "that aperson being unlawfully arrested may always resist such an arrest with force, we would be inviting anarchy." 

### Id. Ms. Riojas makes the bald statement that Valentine does not apply here, because "this was not an arrest." Br. ofAppellant at 24. She provides no authority and makes no attempt to argue why a defendant shouldhave a greater right to resist a Terry stop, which is "significantly less intrusive than an arrest," State v. Kennedy, 107 Wn.2d 1,6, 726 P.2d 445 (1986), than the right she has to resist arrest. The reasoning ofWestlundand Holeman appear to be equally ifnot more compelling where a defendant is being subjected to only investigative detention. Because we do not consider inadequately briefed arguments, we will not consider further the dubious suggestion that Valentine does not apply. RAP 10.3(a)(6). II. ASSIGNMENTS OF ERROR With that overview ofWashington law addressing the limited circumstances under which force can be used against a law enforcement officer, we tumto Ms. Riojas's assignments oferror. A. Sufficiency ofevidence Ms. Riojas first argues that the trial court erred in refusing to dismiss the charge against her for insufficient evidence that Sergeant Moses was performing his official 11

# I

No. 31386-7-111 State v. Riojas
duties at the time she committed the assault. Whether intended as a challenge to the trial court's denial ofherKnapstadmotion, her midtrial motion, or as a separate appeal challenging the sufficiency ofthe evidence, the standard ofreview is the same. State v. Athan, 160 Wn.2d 354, 378 n.5, 158 P.3d 27 (2007). "Dueprocess requires the State to prove all elements ofthe crime beyond a reasonable doubt." State v. Washington, 135 Wn. App. 42,48, 143 P.3d 606 (2006). Evidence is sufficient to support a conviction if, after viewing the evidence in the light most favorable to the State, it allows any rational trier offact to find all ofthe elements ofthe crime charged beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192,201,829 P.2d 1068 (1992). Applying Mierz's construction of"performing his or her official duties," the question is whether, viewed in the light most favorable to the State, its evidence would allow a rational trier offact to find that Sergeant Moses was engaged in some aspect ofa good faith performance of job-related duties, as distinguished from "a frolic ofhis own." As established by Mierz, whether the sergeant's detention ofMs. Riojas was legal or illegal is irrelevant. The State presented evidence that the sergeant was pursuing information relevant to Ms. Culver's allegation that other girls were chasing and throwing bottles at her, and Ms. Riojas's immediately prior statement that Ms. Culver had been chasingher with a knife. A rationaljury could readily find that the sergeant was engaged in an ongoing investigation. There is no merit to the suggestion that because Officer Colin had already 12No. 3 1386-7-II1 State v. Riojas questioned Ms. Riojas outside thepresence ofSergeantMoses, a rationaljurymust construe the sergeant's actions as no longerjob-related. The sergeant was not engaged in
a personal frolic and the court did not err in refusing to dismiss the charge. Ms. Riojas nonetheless contends we are bound by this court's statement inBarnes that "[a]n unlawful detention is by definition notpart oflawful police duties." 96 Wn. App. at 225. The defendant in Barnes did not assault a law enforcement officer. Rather, whentold during a detentionthat the officer was going topathim down for weapons, and knowingthat he was carrying crack cocaine and a crackpipe, the defendant "physically resisted the search. Hejammedhis hands in his pockets and struggled." 

### ld. at 220. He
was arrested for obstructing a law enforcement officer, butwas neverprosecuted for that crime; instead, he was prosecuted for controlled substances crimes based on the drugs and paraphernalia found whenhe was searched incidentto arrest. Under RCW 9A.76.020(1), which was the basis for Barnes's arrest, itis a crime if
a person "willfully hinders,**delays~** orobstructs any law enforcement officer in the discharge ofhis orher official powers orduties." The differently-worded obstruction statute is concerned with the merehindrance ordelay ofpolice work, notthe dangerto officers that has providedthe basis for the Washington courts' construction ofRCW 9A.36.031(1)(g). When it comes to the meaning of"performance ofofficial duties" for purposes ofthe third degree assault charged here, it is Mierz andHoffman, notBarnes, that are controlling. 13

### No. 31386-7-111 State v. Riojas
B. Exclusion ofevidence Ms. Riojas's second and third assignments oferror are that the court erred in excluding evidence ofSergeant Moses's use offorce in arresting her and her earlier training in self-defense. The two types ofevidence were offered for differentpurposes,
so we address them separately. Evidence of the sergeant's use afforce. In his opening statement, Ms. Riojas's lawyertold thejury that after Ms. Riojas hit Sergeant Moses, she "wastaken into a hair hold and notjustplaced on the ground, but slammed on the ground, and gother arms messed up pretty bad." RP at 80. When he attempted to cross-examine the State's first witness about the sergeant's postassault use offorce, however, the State objected on relevance grounds and its objection was sustained. Defense efforts to question other witnesses about the sergeant's use offorce after being hit by Ms. Riojas were likewise met with objections that were sustained. Outside the presence ofthejury, the court explained that it was excluding the evidence based onER403 and its conclusion thatthe limitedprobative value ofthe evidence was substantially outweighed by the danger of confusing the issues and misleading thejury. As the trial courtrecognized, whetherthe police "over-reacted after the fact" was "not what we'rehere about," and while "there is all sorts ofremedies for that sort ofthing
...they are not goingto be in this court." RP at 99-100. Itexpressed its concern thatthe admission ofthe evidence would tumthe trial into a "trial ofrelative culpability, orwho used excessive force the worst." RP at 99. 14No. 31386-7-II1 State v. Riojas
The admissibility ofevidence rests within the sound discretion ofthe trial court. State v. Atsbeha, 142 Wn.2d 904,913-14, 16 P.3d 626 (2001). We will not reverse a trial court's decision to exclude evidence absent an abuse ofdiscretion. State v. Cuthbert, 154 Wn. App. 318, 337, 225 P.3d 407 (2010). "Relevant evidence" is that which has "any tendency to make the existence ofany fact that is ofconsequence to the determination ofthe action more probable or less probablethan it would be without the evidence." ER401. The threshold for admitting relevant evidence is very low, and "[e]ven minimally relevant evidence is admissible." State v. Darden, 145 Wn.2d 612,621,41 P.3d 1189 (2002). But relevant evidence may be excluded under ER403 "ifits probative value is substantially outweighed by the danger ofunfair prejudice, confusion ofthe issues, or misleadingthejury, or by considerations ofundue delay, waste oftime, or needless presentation ofcumulative evidence." Ms. Riojas argues that the degree offorce used by SergeantMoses after she struck him was relevant in determiningthe degree offorce he used immediately before Ms. Riojas assaulted him. Giventhe high standard imposed for lawful use offorce against a police officer, only evidence thatMs. Riojas was actually in danger ofserious injury and intentionally actedto defend herselfwould have beenrelevant to herrightto claim selfdefense. But as the court observed elsewhere, "there is not a scintilla ofevidence
...that [Ms. Riojas] was in actual and imminent danger ofserious injury." RP at 308. And she 15No. 31386-7-III State v. Riojas

never claimed that she intentionally defended herself-she claimedthat she was surprised by having her arm grabbed and responded instinctively. The defense could and did argue that the State opened the doorto evidence ofthe sergeant'spostarrest use offorce by eliciting testimony from Officer Colin that as the officers escorted herto the patrol car, Ms. Riojas "might" have said, "'You are hurting me'''-especially after the prosecutortold the court outside the presence ofthejurythat she elicited the evidence only "to demonstrate her state ofmind, that she wasjust angry thatnight." RP at 87, 96. It was untenable for the prosecutor to believe that the State could present evidence ofMs. Riojas's screams, argue that they were proofofherbad attitude, and then object to a defense effort to show that Ms. Riojas was screaming because she had actually been hurt in the course ofthe arrest. As the lawyers continued to argue the evidentiary issue outside the presence ofthe jury, the prosecutor appears to have realized that she might indeed be opening the door, and she offeredto ask no further questions about Ms. Riojas's behavior after she was placed under arrest. The court ultimately ruled: I will say this: Ifthe State goes any further and elicits further reactions from her, then, then the question is going to be backto, well, what she is reacting to and it would open the door further. Atthis point I'm shutting the door. And ifthe State reopens it, be it on theirheads. RP at 105. The court then asked the prosecutor ifsheunderstood what it was trying to say, adding, "Youmade this offer [to stop the line ofquestioning] earlier and basically
16

### No. 31386-7-111 State 

### v. Riojas
what I'm saying, 1wouldn't treat it as an offer. 1would treat it as what you better do to keep the door shut." Id. The State steered clear ofMs. Riojas's postarrest conduct thereafter. The trial court's handling ofthe issue was reasonable. Officer Colin's testimony
as to what Ms. Riojas "might" have said was insignificant without further development. A complete vetting ofevidence as to the force used in the arresthad a real potential for creatingjury confusion about whether the sergeant's use offorce mattered. We find no abuse ofdiscretion. Self-defense training. Attrial, the defense soughtto characterize Ms. Riojas's conduct as automatic orreflexive, as opposed to intentional. To support this theory, Ms. Riojas's lawyer questioned her about her training in martial arts. She testified that she took martial arts in middle school and at the community college, and that she took a selfdefense class overthe summer. When her lawyer's questions changed from asking about "martial arts" to "self-defense," the State objected and its objection was sustained. Argument about further questioning was held outside the presence ofthejury. Ms. Riojas's lawyer made an offer ofproofby questioning her further. When asked whether she believed that herphysical response to being grabbed by SergeantMoses "was inpart because of[her] training and experience," Ms. Riojas responded, "Yes." RP at 258. Afterhearingthe offer ofproof, the courtruled that Ms. Riojas could describe



### 17No. 31386-7-III 

### State 

### v. Riojas
what she did, but that any reference to "self-defense classes or instinctive, ormoves that you make in response to grabbing" would not be admitted. RP at 256-57. Intent is an implied element ofthird degree assault. 

### State v. 

### Tunney, 77 Wn. App. 929,934,895 P.2d 13 (1995), 

### all'd, 129 Wn.2d 336, 917 P.2d 95 (1996). "Aperson acts with intent orintentionally when he or she acts with the objective or purpose to accomplish a result which constitutes a crime." RCW 9A.08.010(1)(a). Accordingto Ms. Riojas, the evidence regarding hertraining "was offered on the issue ofintent, so the jury could evaluate whether someone who had been trained to reacttobeing grabbed could made [sic] an automatic response, withoutthe intentto commit an assault." Reply Br. ofAppellant at 5. Washington courts have not analyzed a defendant's claim of"conditioned response" interms ofintent. In three decisions, they have analyzed a defense of conditioned response as bearing on voluntariness as a component ofa crime's actus reus. 

### See State 

### v. Utter,4 Wn. App. 137, 139,479P.2d 946 (1971) (defendant asserted that homicide was a conditioned response to 'junglewarfare training and experiences in World War II");

### State 

### v. Perkins, 14 Wn. App. 27, 32, 538 P.2d 829 (1975) (homicide
was a conditioned response to "the extremely harsh nature ofhis military training"); 

### State


### v. Deer, 175 Wn.2d 725, 731-33, 287 P.3d 539 (2012) (defendant charged with third degree rape ofa child was asleep during some acts ofintercourse with 15-year-oldboy), 

### cert. denied, 133 

### S. Ct. 991 (2013). All three cases have characterized the defense as 18No. 31386-7-III 

### State 

### v. Riojas requiring an unconscious or automatistic act. 

### Utter, 4 Wn. App. at 141; 

### Perkins, 14 Wn. App. at 32; 

### Deer, 175 Wn.2d at 733-34. In its most recent decision, 

### Deer, the court held that while a defendant "is entitled to argue a lack ofconscious action, [the] claim is properly treated as an affirmative defense, much like claims ofinvoluntary intoxication, insanity, or unwittingpossession." 175 Wn.2d at 733. 

### Utter and

### Perkins addressed the evidence ofunconscious or automatistic conduct required before a defense ofconditioned response can be submitted to thejury, and in both cases, the appellate courts affirmed the trial courts' determinations that there was insufficient evidence. In 

### Utter, the defendant testified to hisjungle warfare experiences and to priorviolent reactions and presented expertpsychiatric testimony on conditioned response. The evidence was found to be insufficientto present ajury issue, though, because no one could testify to what had occurred between the defendant and his victim; thejury would be speCUlating. In 

### Perkins, the defendantpresented evidence ofhis military training and that "'everything went black'"before he committed a homicide, but the appellate court held that a defense that a criminal act was automatistic "should not be presented to ajury unless there is sufficient evidence to establishthat the defendant
... was indeed automatically responding to external stimuli by learned physical reactions." 14 Wn. App. at 31-32. It continued that because "[w]e find no medical evidence to supportthis theory

... any failure ofthe court to instructthejuryproperly on this theory is immaterial." Id. 19

### No. 31386-7-111 State v. Riojas Here, Ms. Riojas was allowed to testifY that shewas not expecting to be grabbed by SergeantMoses, that it surprised her, that she reacted automatically, and that she had not intended to hitthe sergeant. Among her testimony was the following: Q. When [SergeantMoses] grabbed youbythe arm would you describe that you were or were not surprised? A. 1was surprised. Q. And would you characterize your surprise as a minor orlittle surprise, or were you a lot surprised? A. A lot surprised. Q. Andwhat was yourreaction to that? 

### A. 1had an automatic reaction. He grabbed me so 

### 1went like that (indicating) to get away. 

### RP at 264. While Ms. Riojas was not allowed to testifY before thejuryto herbeliefthather physical response was "inpartbecause ofhertraining and experience," as she had during her offer ofproof, no evidence was presented during the offer ofproofthat she was qualifiedto express an opinion onthe automatistic nature ofherresponse. Because she offered no qualified expert testimony that her reaction was automatistic, her offer of prooffell short ofthe expert testimony thatPerkins held is required to present a defense ofconditioned response. Given the insufficiency ofMs. Riojas's offer ofproofin support ofher right to assert a defense ofautomatistic response, thetrial court did not abuse its discretion in sustainingthe State's objections.

20No. 31386-7-II1 State v. Riojas
C. Right to present a defense Ms. Riojas argues that even ifthe trial court's rulings were not an abuse of discretion under the rules ofevidence, they denied her her constitutional right to present a defense. State rule makers have broad latitude to establish rules excluding evidence from criminal trials, but "[t]his latitude
...has limits. 'Whetherrooted directly in the Due Process Clause ofthe Fourteenth Amendment or in the Compulsory Process or Confrontation Clauses ofthe Sixth Amendment, the Constitution guarantees criminal defendants "ameaningful opportunity to present a complete defense."'" Holmes v. South Carolina, 547 U.S. 319, 324, 126 S. Ct. 1727, 164 L. Ed. 2d 503 (2006) (quoting Crane


### v. Kentucky, 476 U.S. 683, 690, 106 S. Ct. 2142, 90 L. Ed. 2d 636 (1986) (quoting California v. Trombetta, 467 U.S. 479, 485,104 S. Ct. 2528, 81 L. Ed. 2d 413 (1984))). Evidentiary rules can impermissibly abridge a criminal defendant's right to present
a defense ifthey are "'arbitrary or disproportionate' and 'infringe[ ] upon a weighty interest ofthe accused.'" State 

### v. Rafay, 168 Wn. App. 734, 796, 285 P.3d 83 (2012) (alteration in original) (internal quotation marks omitted) (quoting UnitedStates v. Scheffer, 523 U.S. 303, 308,118 S. Ct. 1261, 140 L. Ed. 2d 413 (1998)), review denied, 176 Wn.2d lO23, cert. denied, 134 S. Ct. 170 (2013). The constitutional concern is with evidence that is relevant but excluded by rules that serve no legitimate purpose or that are disproportionate to the ends they are asserted to promote. Scheffer, 523 U.S. at 308; State 21No. 31386-7-III 

### State 

### v. Riojas

v. 

### Hudlow, 99 Wn.2d 1, 14-15,659P.2d 514 (1983). Article I, section 22 ofthe Washington Constitution guarantees criminal defendants aright to present testimony in their defense that is equivalent to the right guaranteed by the United States Constitution. 

### See Hudlow, 99 Wn.2d 1. Inreviewing Ms. Riojas's claim that she was denied the right to present a defense,
we review whether the evidence she sought to offerwas relevant and was excluded for a
reason that was arbitrary or disproportionate and infringed upon an interest on herpart that was weighty. The evidence she wished to offer on Sergeant Moses's use offorce while arresting her is readily addressed: the evidence was not relevant. A criminal defendant has no constitutional right to have irrelevant evidence admitted in his or her defense. 

### Scheffer, 523 U.S. at 308; 

### Hudlow, 99 Wn.2d at 14-15. As to the evidence she wished to offer suggesting that the swing she took at Sergeant Moses was unconscious and automatistic, ER 701 provides that a witness's testimony in the form ofopinions or inferences is limited to opinions and inferences that (relevant here) are rationally based on the perception ofthe witness and are not based on scientific, technical, or other specialized knowledge within the scope ofER702. Washington decisions have heldthat a defendant's right to present a defense is not violated by excluding the opinion testimony ofan unqualified expert. 

### See State 

### v. Soper, 135 Wn. App. 89, 96, 143 P.3d 335 (2006) (excluding testimony ofunqualified physician that defendant used marijuana for medical reasons did not violate constitutional right to 22No. 31386-7-II1 State 

### v. Riojas present a defense); State v. Willis, 113 Wn. App. 389, 54 P.3d 184 (2002) (trial court's exclusion oftestimony ofexpert in rape case did not violate defendant's constitutional right to present a defense where expert had insufficient information from which to form helpful opinions), rev'dinparton othergrounds, 151 Wn.2d 255,87 P.3d 1164 (2004). The evidence rules dealingwith opinions and experts serve a legitimatepurpose that is particularly clear where, as here, a defendant offers her own opinion or inference
on a medical orpsychological matter as to which she has no apparent knowledge or training. She was not denied her constitutional right to present a defense. 

### D. Refusal to give requested instruction Ms. Riojas next argues that the trial court erred in refusing to give her proposed instruction on self-defense, which was based on WPIC 17.02. "A criminal defendant is entitled to an instruction onhis orher theory ofthe case ifthe evidence supports the instruction." State 

### v. Werner, 170 Wn.2d 333, 336, 241 P.3d 410 (2010). "To raise selfdefense before ajury, a defendant bears the initial burden ofproducing some evidence that his or her actions occurred in circumstances amounting to self-defense." Riley, 137 Wn.2d at 909. "Atrial court's refusal to give instructions to ajury, ifbased on a factual dispute, is reviewable only for abuse ofdiscretion," while its "refusal to give an instruction basedupon a ruling oflawis reviewed de novo." State 

### v. Walker, 136 Wn.2d 767,771-72,966 P.2d 883 (1998).

23No. 31386-7-111 State v. Riojas
The pattern instruction that Ms. Riojas proposed is used when a defendant has presented sufficient evidence to raise a claim ofself-defense against a lay victim. 

### It provides that the use offorce toward another is lawful when used "by a person who reasonably believes that she is about to be injured or in preventing or attempting to prevent an offense against the person, and when the force is not more than is necessary." CP at 35. As earlier discussed, a defendant's use offorce upon or toward a law enforcement officer is only lawful when used by a person who is actually about to be seriously injured. No evidence was presented or offered that Ms. Riojas was in actual danger ofserious injury. Insufficient evidence supported giving any self-defense instruction, and the instruction that Ms. Riojas proposed described the general standard for self-defense rather than the heightened standard applicable to the crime ofthird degree assault with which she was charged. The trial court did not abuse its discretion in refusing to give the instruction. E. Reference to "unlawful force" in defining assault Finally, Ms. Riojas contends that the trial court erred in including the phrase "unlawful force" in its instruction to thejury defining assault without further defining that term. The court's instruction defined three means ofcommitting assault, each of which provided that an act ofassault is one done "with unlawful force." CP at 44 (Instruction 5). 24

## ,

No. 31386-7-III State 

### v. Riojas Washington courts typically define "assault" as "'an attempt, with unlawful force, to inflict bodily injury upon another, accompanied with the apparentpresent ability to give effectto the attempt ifnotprevented.'" State v. Krup, 36 Wn. App. 454, 457, 676 P.2d 507 (1984) (quoting State v. Stewart, 73 Wn.2d 701, 703,440 P.2d 815 (1968)). Butthe Washingtonpattern instruction, on which the trial court's instruction 5 was based, brackets the phrase "with unlawful force." It states in its note on use that the phrase "with unlawful force" should be used "ifthere is a claim ofselfl-]defense or other lawful
use offorce." WPIC 35.50 note onuse at 548. The commentto WPIC 35.50 states that ifthere is not support for a claim ofself-defense, "thejury should not be left to speculate
onwhat might constitute 'lawful' conduct." Id. cmt. at 550; accordState 

### v. Calvin, 176 Wn. App. 1,2013 Wash. App. LEXIS 1276, at *20, 316 P.3d 496,505 ("The term 'unlawful force' is only necessary in the definition ofassault when there is a specific argument from the defense that the use offorce was somehow lawful."),petition for reviewfiled, No. 89518-0 (Wash. Nov. 12,2013). According to the note onuse and the comment, thebracketed language "with unlawful force" should nothave been included in the instruction in this case. ButMs. Riojas never objected to inclusion ofthe language. 

### "An assignment oferror against a given instruction, based upon a theory not presentedto the trial court atthetime exception is taken, will not be considered on appeal." State v. Upton, 16 Wn. App. 195, 203, 556 P.2d 239 (1976). 25No. 31386-7-III State v. Riojas
The concern reflected in the note onuse and comment is that thejurywill speculate on what might constitute a "lawful" use offorce by a defendant in a case where
no evidence supports any lawful use offorce-in other words, thejury might speculate in the defendant's favor, without a basis in law. Ms. Riojas's competent defense lawyer tried repeatedly to get some evidence or instruction on self-defense before thejury. We strongly suspect that his failure to object to the "with unlawful force" language was tactical. 

### Cj State v. Hughes, 106 Wn.2d 176, 192-93, 721 P.2d 902 (1986) (concluding, where the same language was included in the instruction absent a defense, that "experienced trial defense counsel considered the word 'unlawful' helpful to the defendant's theory ofthe case at trial or, at least, not harmful"). In any event, wewill not consider a challenge to the instruction for the first time on appeal. RAP 2.S(a). STATEMENT OF ADDITIONAL GROUNDS In a pro se statement ofadditional grounds, Ms. Riojas raises two. Inconsistent Testimony/InvalidTerry Stop. Ms. Riojas contends that Sergeant Moses made statements in his police report that contradict his trial testimony. In his police report, Sergeant Moses wrote that "[i]twas obvious" Ms. Riojas had "made
... up" the business about Ms. Culver having come after herwith a knife. CP at 17. Ms. Riojas claims this statement is inconsistent with Sergeant Moses's testimony at trial that he had grounds to detain Ms. Riojas based on her statement that Ms. Culver had aknife. She argues that ifthe sergeantbelieved she was lying, he had no basis to detain her 26No. 31386-7-111 State 

### v. Riojas
further for questioning. Ms. Riojas fails to explain why, ifthere is an inconsistency, it presents a reversible trial error. As earlier discussed, whether her detention was lawful or unlawful is irrelevanttoher guilt. We will not consider a statement ofadditional grounds ifit does not inform us ofthe nature ofthe error. RAP 10.10(c). Unfair Treatment. Ms. Riojas next argues that she was treated unfairly, as she was the only individual arrested atthe party. She also claims that SergeantMoses singledher out by questioning her, but not Ms. Culver. Here again, she provides no explanation of the nature ofany legal error and wewill not considerit. See id. Affirmed. A majority ofthe panel has determined thatthis opinion will not be printed in the WashingtonAppellate Reports but it will be filed for publicrecord pursuantto RCW 2.06.040.

WE CONCUR: Brown, 1.

# ~C) Lawrence-Berrey, 1.

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