IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON STATE OFWASHINGTON, Respondent,


### v. JOHN ACCIE BRIGGS IV, Appellant. ) ) ) ) ) ) ) ) )



# _______________________) DIVISION ONE No. 67964-3-1

UNPUBLISHED OPINION FILED: March 11,2013 DWYER, J.- John Briggs appeals from his conviction ofassault in the second degree arising from an incident in which, during the course ofan 

### ...., 

# = '-'-' ::11: > ;;>:J 

# """ :X



# - 

# .. U1 U'l

argument, Briggs attacked and wounded his roommate with a machete. Briggs asserts that the trial court erred by declining to instructthejury regarding the law ofself-defense. However, becausethe degree offorce employed by Briggs was not reasonably necessary underthe circumstances, a claim ofself-defense could not be successfully interjected, and the trial court did not err by denying Briggs's requestfor such an instruction. Accordingly, we affirm.

On the night ofJune 11, 2011, a 911 call was placed from the home of 

## " U>o**>!~** f;i-1**C)~** ,, ""1**~1>-- ~-ur**  ...,-a (nrr1rrt**~~** J;-..CJ :z:r C)U> --<oo

### z<**~**No. 67964-3-1/2
John Briggs. The caller, who did not identify himselforspeak to the operator, left the line open. The operatorwas ableto discern the sounds ofmale voices arguing. Edmonds police officers were thereafter dispatched to Briggs's residence. Upon arriving atthe scene, the officers encountered Jameson Nelson outside the house. Nelson, who had run from inside the residence, was bleeding from wounds on his left arm and back. He appeared to be frightened and was yelling for help. Nelson told the officers that Briggs, with whom Nelson shared the house, had attacked him with a machete. The officers observe atwo-inch cut
on Nelson's arm and a "good wide gash" on his back. Briggs emerged from the house several minutes later. He admitted to the officers that he was intoxicated. Briggs was bleeding from a cut above his left eye and told the officers that he had been punched by Nelson during an argument over "normal roommate issues." He told the officers that he had then returned to his room, obtained a machete, and used this weapon to chase Nelson from the house. The officers recovered two machetesfrom the residence. Briggs identified one ofthe machetes as the weapon used during the incident. Briggs wasthereaftertaken into custody and charged with assault in the first degreewhile armed with a deadlyweapon otherthan afirearm. At the ensuing trial, Nelson testified regarding his encounterwith Briggs. Hetold thejurythat he and Briggs had been arguing in the living room. He explained that Briggs believed that someone had stolen itemsfrom his room and 

### - 2 -No. 67964-3-1/3
that Nelson was responsible. Nelson testified that Briggs was intoxicated and that Nelson had used his hands to direct Briggs out ofthe living room and into his bedroom. Nelson denied hitting, kicking, or shoving Briggs as he directed Briggs to his room. Nelson told thejurythat after Briggs entered his bedroom, Nelson wentto the kitchen to eat. Several minutes later, however, Briggs reappeared, blocking the only exitfrom the kitchen. He was armed with a machete. Nelson testified that Briggs said, "what, what?" and then approached Nelson with the weapon raised. As Nelson lifted his hand to defend himself, Briggs swung the machete and struck him on the left arm. Nelson then struck back at Briggs, hitting him in the face with his fist. He attempted to run past Briggs and, as he did so, he felt pain on his back. Nelson then fled from the house and encountered a police officer almost immediately. Thejury also heard testimony from Michael Cassel, the person who had placed the 

### 911 call. Cassel, who also shared the housewith Briggs and Nelson, testified that he was in his bedroom when he heard the two men arguing. He told the jurythat, upon emerging from his room, he saw Briggs and Nelson in the living room, just inches from one another, screaming and yelling. He testified thatthey may have been pushing each other. Cassel did not see either one hit the other and did not see any blood orweapons. He then dialed 

### 911 and set the phone down on the living room table. Cassel told thejury that, after Briggs returned to his bedroom and Nelson went to the kitchen, Cassel returned to his own bedroom. Shortlythereafter,

- 3 -No. 67964-3-1/4 however, he heard what sounded like a person hitting the doorwith his fist or feet. Moments later, Cassel heard screaming, a doorslam, and footsteps going out the door. When Cassel left his bedroom to investigate, he saw Briggs standing alone in the living room holding a machete. Briggs told Cassel that he needed to leave the house. A recording ofthe 

### 911 call placed by Cassel was also played for thejury. During the first several minutes ofthe call, Cassel and Nelson can be heard attempting to deescalatethe situation. Nelson tells Briggs to "knock it off, calm down." Cassel tells Briggs to "put down the phone, take care ofyourself, go back to the bathroom." Someone tells Briggs that he is bleeding and that he should "mop it up." Cassel tells Briggs to put something on his eye. Later in the recording, Briggs tells someone that, "you bettergetthe tuck out ofhere." Finally, just priorto the end ofthe call, Briggs can be heard saying, "What? I'm serious." Briggs did nottestify atthe trial. Afterthe defense rested, the prosecutor argued to the trial court, outside the presence ofthejury, thatthe evidence adduced was insufficientto support a self-defense instruction. 1 Thetrial court-afterconsidering additional briefing by the defense-agreed and, accordingly, declined to instructthejury regarding the law ofself-defense. Thejurythereafter convicted Briggs ofassault in the second degreewhile

1 Priorto the trial, the State had conceded that a self-defense instruction would be appropriate. - 4 -No. 67964-3-1/5
armed with a deadlyweapon-a lesser included offense on the count ofassault in the first degree. Briggs was sentenced to aterm ofimprisonmentwithin the standard range. Briggs appeals. II Briggs contends thatthe trial court erred by declining to instructthejury regarding the law ofself-defense. Wedisagree. A criminal defendant is entitled to have the trial court instruct upon his or hertheory ofthe case so long as there is evidence to supportthe theory. State
v. Hughes, 106Wn.2d 176, 191,721 P.2d 902 (1986). The defendant is not entitled to a self-defense instruction unless there is "'some evidencewhich tends to prove thatthe [defensive act] occurred in circumstances amounting to selfdefense."' State v. Walker, 136 Wn.2d 767, 772, 966 P.2d 883 (1998) (quoting State v. Janes, 121 Wn.2d 220, 237, 850 P.2d 495 (1993)). The court mustview the evidence in the light mostfavorable to the defendant. State v. Callahan, 87 Wn. App. 925, 933, 943 P.2d 676 (1997). However, "[i]f any one ofthe elements ofself-defense is not supported by the evidence, the self-defensetheory is not availableto a defendant, and the defendant cannot presentthe theoryto ajury." Walker, 136Wn.2d at773 (citing State v. Griffith, 91 Wn.2d 572, 575, 589 P.2d 799 (1979)). A valid claim of self-defense requires (1) thatthe defendant subjectively feared that he or she was in imminentdangerofbodily harm, (2) thatthis belief
was objectively reasonable, and (3) that the defendantexercised no moreforce 

### - 5 -No. 67964-3-1/6
than was reasonably necessary. State v. Werner, 170Wn.2d 333, 337, 241 P.3d 410 (2010). The defendant may employ no greaterforce than "what a reasonably prudent person would find necessary underthe conditions as they appeared to the defendant." State v. Walden, 131 Wn.2d 469, 474, 932 P.2d 1237 (1997). Deadly force-defined as "the intentional application offorce through

... means reasonably likelyto cause death or serious physical injury," RCW 9A.16.010{2)-isjustified only when the threat perceived is ofdeath or great bodily harm. Walden, 131 Wn.2d at474. Wherethe evidence demonstratesthatthe defendant's use offorce underthe circumstances is excessive as a matteroflaw, the trial court does not err by declining to instruct the jury on self-defense. Griffith, 91 Wn.2d at 575; State v. Brigham, 52 Wn. App. 208, 210, 758 P.2d 559 (1988). Here, no reasonably prudent person in Briggs's circumstances would find the use ofdeadlyforce in the form ofa macheteto be necessaryto meetthe alleged threat posed by Nelson.2 Considering the evidence in the light most favorable to Briggs, Nelson struck Briggs while the two men were arguing in the living room, and the cut above Briggs's eye was caused by Nelson striking him. It is undisputed that Briggs then returned to his bedroom, armed himselfwith the machete, and, several minutes later, confronted Nelson in the kitchen. There is also no disputethat Briggs twice struck Nelson with the machete as Nelson

2 The trial court's decision notto give a self-defense instruction was based upon the court's conclusion that there was no evidence tending to indicate that Briggs had a subjectivefear ofbodily harm atthe time he assaulted Nelson. However, we may affirm on any grounds supported by the record. State v. Costich, 152 Wn.2d 463, 477, 98 P.3d 795 (2004). 

### - 6 -No. 67964-3-1/7 attempted to escapefrom the kitchen, opening substantial cuts on Nelson's left
arm and back. Given these circumstances, the threat posed by Nelson did notjustifythe
use ofdeadlyforce. As we explained in Brigham, a case in which the defendant also had been previously struck by the victim, [the defendant's] displaying a knife may well have been a reasonable response to Bluford's attack. Had the episode ended there, ajury could havefound Brigham justified in resisting Bluford in this way and thus no crime. Butwhen Brigham moved to stab Bluford, the character oftheir encounter changed from an altercation between the two men to an assault by Brigham upon Bluford. Brigham thrust his knife into Bluford's back eighttimes; this was excessive force as a matteroflaw underthe circumstances, and could not be successfully interjected as selfdefenseto Bluford's attack. 52 Wn. App. at 210. Here, as in Brigham, when Briggs moved to cut Nelson with the machete, the character oftheir encounter changed from a common altercation to an assault by Briggs upon Nelson. Briggs swung his machete at Nelson twice, cutting Nelson as he attempted to flee the scene. There was no evidence adduced from which thejury could determinethat Briggs perceived a threat of death or great bodily harm from Nelson, and accordingly, as in Brigham, Briggs's
use ofpotentially lethal force was excessive as a matter of law. Even when the evidence is viewed in the light mostfavorable to Briggs, no reasonably prudent person could have determined that Briggs's use offorce was



### - 7 -No. 67964-3-1/8
necessary underthe circumstances. Accordingly, as in Brigham, the omission of
a self-defense instruction was not error. 52 Wn. App. at210. Affirmed.

We concur:



### - 8-