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

v. CHRISTOPHER EUGENE PAYTON, Appellant. No. 69865-6-1 DIVISION ONE

UNPUBLISHED •& '^
...

FILED: April 22. 2013 CP Cox, J. —Christopher Payton appeals thejudgment and sentence, 

### following his convictions offirst and second degree assault. He claims that the trial court committed reversible error when itgave a 'first aggressofjury 

### instruction. Payton also requests that we strike the forfeiture of property provisionfrom hisjudgment and sentence, and that we reverse the trial courts order dismissing, without prejudice, the charge ofattempted murder and remand for correction. In his Statement ofAdditional Grounds for Review, Payton makes additional claims. We hold that the trial court did not abuse its discretion in determining that there was sufficient evidence to support an aggressor instruction in this case. We decline to address the assignment of error regarding the forfeiture of property provision because it is entirely speculative and not properly before this court. The parties agree that the trial courts Order for Dismissal as to Count I 

### OnlyWithout Prejudice contained an error. Thus, we vacate that order and remand for correction ofthe error. toNo. 69865-6-1/2 

### Payton's Statement ofAdditional Grounds forReview has no merit. We affirm Payton's first and second degree assault convictions. 

### In 2010, Christopher Payton and G.M. were in a romantic relationship and 

### lived together with G.M.'sadult son, K.Y. The three lived in G.M.'s house in Tacoma, but K.Y. slept in the attached garage. 

### Early one morning in October 2010, K.Y. testified that he heard hismother screaming while he was in the garage. He grabbed his stun gun and went toward the screaming. When K.Y. entered the bedroom, he testified that he saw his mother on a lower bunk bed and Payton standing over her with a hatchet raised at shoulder level. He testified that he discharged the stun gun into 

### Payton's torso. Then, K.Y. felt Payton swinging a hatchet athis neck, back, and
head. G.M. testified that before K.Y. entered the bedroom she and Payton were 

### arguing, and eventually Payton punched her. 

### Payton testified that he was verbally aggressivetoward G.M., but he claimed that he did not push or punch her, or threaten herwith a hatchet. He testified that G.M. screamed when he reached toward the bed and tried to pull off 

### a blanketto see ifG.M. had anything in her hand. Then, he felt a pinching in his 

### side. As hefell to theground, hetestified that he grabbed a hatchet and started defending himself. He claims that hedid not know who was attacking him. He testified that he swung the hatchet until the person fell down. 

### By amended information, the Statecharged Payton with threecriminal acts (in three separate counts): attempted first degreemurderofK.Y. (count I),No. 69865-6-1/3 

### first degree assault ofK.Y. (countII), and second degree assault ofG.M. (count III). The State also alleged that Payton used a deadly weapon for allthree counts forpurposes of deadly weapon enhancements. It also alleged that the crimes were domestic violence incidents. 

### Ajury acquitted Payton of attempted first degree murder and failed to reach a verdict on the lesser included offense of attempted second degree 

### murder. But itfound Payton guilty ofcounts II and III and the corresponding
enhancements. For counts II and III, the court sentenced Payton to 183 months of 

### confinement. Upon the State's motion, the court ordered that count Ibe dismissed without prejudice. Payton appeals. AGGRESSOR INSTRUCTION 

### Payton argues that the trial courtcommitted reversible error when it gave the State's proposed first aggressorjuryinstruction overdefense counsel's objection. We disagree. 

### At Payton'sjury trial, the court gave thefollowing aggressor instruction, which was based on WPIC 16.04: 

### No person may, by any intentional act reasonably likely to 

### provoke a belligerent response, create a necessity foracting in selfdefense and thereupon use, offer or attempt to use force upon or 

### toward another person. Therefore, ifyoufind beyond a reasonable doubtthat the defendant was the aggressor, and that defendant's 

### acts and conduct provoked or commenced the fight, then selfdefense is not available as a defense.111 

### 1Clerk's Papers at 137; Report of Proceedings (Aug. 30, 2011)at 606-09.No. 69865-6-1/4

A trial court's decision regarding a jury instruction is reviewed for 

### abuse ofdiscretion ifit is based on afactual dispute.2 Atrial court's 

### decision based on a ruling oflaw is reviewed de novo.3 To determine whether there is sufficient evidence to support giving an instruction, a court views the evidence inthe lightmost favorable to the party requesting the instruction4 

### Payton argues that the aggressor instruction was improper in this case because the evidence did not support the State's theory that he was the first 

### aggressor toward K.Y. Since this is a factual dispute, we review the facts to determine whether the trial court abused its discretion in allowing the instruction. 

### A jury instruction is appropriate ifthere is sufficientevidence to support the 

### theory on which theinstruction is based.5 Generally, "the rightofself-defense cannot be successfully invoked by an aggressor or one who provokes an altercation."6 

### Although not favored, an aggressor instruction is proper ifthere is credible evidence, even ifdisputed, "from which a jurycan reasonably determine that the

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

### 3id at 772. 4 State v. Fernandez-Medina. 141 Wn.2d 448, 455-56, 6 P.3d 1150 (2000).5State v. Davis. 119 Wn.2d 657, 665, 835 P.2d 1039(1992). 6State v. Rilev. 137 Wn.2d 904, 909, 976 P.2d 624 (1999).No. 69865-6-1/5 

### defendant provoked the need to actin self-defense."7 Theprovoking actmust be intentional and related to the assault for which self-defense is claimed, but it cannot be the actual assault.8 A defendant's intentional acts directed at a third party canjustify an 

### aggressor instruction ifthe acts were reasonably "likely to provoke a belligerent 

### responsefrom the actual victim."9 Here, the evidence showed that Payton's actions directed at G.M. were reasonably likely to provoke a belligerent response from K.Y. The State presented evidence that K.Y., who lived inthe house with 

### Payton and G.M., heard G.M. screaming. He grabbed his stun gun and went to the bedroom where he heard the screaming. When he entered the bedroom, K.Y. testified that he saw his "mother 

### pretty much pinned on that mattress, the lower mattress, and [Payton] standing .

. . with the hatchet in his right hand, and [hismother] screaming and reachingfor 

### her phone and purse."10 Viewing the evidence in the light most favorable to the State, Payton's actions against G.M. were reasonably likely to provoke a belligerent response
7kL 

### 8State v. Kidd, 57 Wn.App. 95, 100, 786 P.2d 847 (1990). 

### 9ig\at98, 100 (citing State v. Wasson, 54Wn. App. 156, 159-61,772 P.2d 1039 (1989)); see also Davis, 119 Wn.2d at 666 (explaining that there was evidence that Davis pushed a woman and this was an intentional act that was 

### "likely to provoke a belligerent response" from the woman's friend who intervened).
10 Report of Proceedings (Aug. 24, 2011) at 128.No. 69865-6-1/6 

### from K.Y. who wanted to protect his mother. Payton knew that K.Y. lived in the house and could be there to hear G.M. screaming. It is reasonably likely that a son who heard his mother screaming and saw a hatchet drawn on her would

come to her aid. 

### The State also argues that the aggressor instruction was "proper because 

### there was evidence that[Payton] drew aweapon first."11 Butwe need not address this argument because we hold that the aggressor instruction was warranted on the basis we explained. 

### Payton argues that "the act alleged to be the 'firstaggression' must be 

### directed at the same person againstwhom the self-defense claim is made." 

### Payton cites State v. Kidd to support his argument.13 But as discussed above, this court in Kidd explained that a defendant's intentional acts toward a third party can be a provoking act if itwas reasonably "likely to provoke a belligerent 

### response from theactual victim."14 Thus, itdoesnot matterthat Payton's actions wereinitially directedonly at G.M., or that K.Y. was notin the room when Payton first started assaulting G.M. The aggressor instruction was warranted because



### 11 Response Briefat 13 (citing State v. Winqate. 155Wn.2d 817, 822, 122 P.3d 908 (2005)): see also Riley, 137 Wn.2d at 910 ("Ifthere is credible evidence that the defendant made the first move by drawing a weapon, the evidence supports the giving of an aggressor instruction."). 

### 12 Appellant's Opening Briefat 20. 13 Jd (citing Kidd, 57Wn. App. at 100).

14 Kidd, 57 Wn. App. at 100.No. 69865-6-1/7 there was other evidence that Payton's actions were reasonably likely to cause a belligerent response in K.Y. Payton also contends that there was absolutely no evidence here that his assault was "intended to provoke a belligerent response from [K.Y.] so that [he] 

### could then assault [K.Y.] with impunity under aclaim ofselfdefense."15 Butthe issue is not whether Payton intendedto provoke a belligerent response from K.Y. The issue is whether Payton's intentional acts were "reasonably likely to 

### provoke a belligerent response."16 

### Finally, Payton cites State v. Wasson17 and State v. Brower18 to support his argument that the aggression instruction was improper. In both ofthese 

### cases, the courts determined that anaggressorinstruction was notwarranted.19 But these cases are distinguishable. Inthe first case, Wasson and his cousin, Billy Bartlett, were fighting 

### outside Bartlett's apartment.20 Avisitorto the neighborhood, Thomas Reed,

15 Appellant's Opening Briefat 20-21. 

### 16 See Davis, 119Wn.2d at 666 (concluding that Davis pushing a man's friend was "reasonably likely to provoke a belligerent response" from that man); see also Kidd, 57 Wn. App. at 100 ("[The provoking act cannot] be an act directed toward one other than the actual victim, unless the act was likely to 

### provoke a belligerent response from the actual victim."). 

### 17 54Wn. App. 156, 772 P.2d 1039(1989). 18 43 Wn. App. 893, 721 P.2d 12 (1986). 19 Wasson, 54 Wn.App. at 161: Brower, 43 Wn.App. at 902. 20 Wasson, 54 Wn. App. at 157.No. 69865-6-1/8 

### came outtotell themen toquietdown.21 Bartlett andReed began fighting, and, 

### afterhitting Bartlett several times, Reed approached Wasson.22 Wasson then shot Reed.23 Division Three of this court concluded that Wasson was not an 

### aggressor because the fight between Wasson and Bartlettwas not related to Reed's assault of Bartlett.24 But Division Three also noted that a defendant's intentional act directed to 

### a third party couldjustify an aggressor instruction ifthe act was "reasonably likely 

### to provoke abelligerent response" from the victim.25 This describes the situation here, and itwarranted an aggressor instruction. In Brower, DivisionThree concluded that an aggressor instruction was not warranted because there was no evidence that Brower engaged in any 

### provoking acttoward Martin.26 But, here, there wasevidence that Payton engaged in a provoking act. Thus, thiscase isdistinguishable from Brower. Insum, the trial court did not abuse its discretion indetermining that there
was sufficient evidence to support an aggressor instruction in this case.



### 21 JdL 22 id 23 Id 24 ]d at 159. 25 ]d at 159-61 (citing State v. Thomas. 63 Wn.2d 59, 385 P.2d 532 (1963)). 

### 26 43 Wn. App. at 902.

8No. 69865-6-1/9

FORFEITURE OF PROPERTY Payton argues that the trial court erred when it required him to "[f]orfeit 

### any items in property" in hisjudgmentand sentence.27 He did not objectto this condition below, but he contends that an illegal sentence may be reviewed for 

### thefirsttime onappeal.28 He requests that we order thetrial courttostrike this 

### provision from hisjudgmentand sentence.29 We decline to addressthis assignment of error. 

### "'[A] court may refuse to return seized property no longer needed for evidence only if (1) the defendant is not the rightful owner; (2) the property is 

### contraband; or (3) the property is subjectto forfeiture pursuantto statute.'"30 "In Washington, CrR 2.3(e) governs motions for the return ofillegally seized property and also motions for the return oflawfully seized property no 

### longer needed forevidence."31 Here, Payton's judgment and sentence for counts II and III contained the following provision:



### 27 Appellant's Opening Briefat 24. 28 Id at 25 (citing State v. Bahl. 164Wn.2d 739, 745, 193 P.3d 678 (2008)). 

### 29 ]d at 24. 30 City of Walla Walla v. $401.333.44, 164 Wn. App. 236, 244, 262 P.3d 

### 1239 (2011) (alteration inoriginal) (internal quotation marks omitted) (quoting City ofWalla Walla v. $401.333.44. 150 Wn. App. 360, 367, 208 P.3d 574 (2009)).
31 State v. Alawav. 64 Wn. App. 796, 798, 828 P.2d 591 (1992).No. 69865-6-1/10 4.4 OTHER. Property may have been taken into custody in conjunction with this case. Property may be returned to the rightful owner. Any claim for return ofsuch property must be made within 90 days. After 90 days, if you do not make a claim, property may 

### bedisposed ofaccording tolaw.1321 The judgment and sentence also listed other conditions, which included, "[f]orfeit 

### anyitems in property."33 Payton does not provide a description ofany property that was actually seized or forfeited. He also does not demonstrate that he has made a motion to the trial court regarding the return of any property. Thus, any issue arising from this condition is entirely speculative and not properly before this court on appeal. We decline to address this assignment of error. DISMISSAL OF COUNT I 

### Payton argues that we should reverse the trial court's order dismissing count I and remand with instructions to correct the order. We agree. The State concedes that the order contained an error. The parties agree that the order should have reflected that countI(attempted first degree murder) 

### was dismissed with prejudice because the jury acquitted Payton of this charge. They also agree that countl-A (attempted second degree murder) should have been dismissed withoutprejudice because the jurywas unable to agree as to 

### this charge. The State asserts that itwill seek a clarified order in the trial court. Based on this representation that the error will be corrected based on the



### 32 Clerk's Paper at 181. 33 Id.

10No. 69865-6-1/11 

### agreement of the parties, we vacate the Order for Dismissal as to Count IOnly Without Prejudice and remand for the orderto be corrected. STATEMENT OF ADDITIONAL GROUNDS 

### Payton raises a number ofissues in his statement of additional grounds. None are persuasive. First, Payton requests that we exercise our discretion and request 

### additional briefing from his appointed counsel pursuant to RAP 10.10(f). After reviewing Payton's additional grounds forreview, we see no need to do so. Second, Payton argues that the State failed to present sufficientevidence 

### to prove the elements offirst degree assault ofK.Y. and second degree assault of G.M. Evidence is sufficient to support a conviction if, viewed inthe light most 

### favorable to the State, any rational trier of fact could have found that each 

### elementofthe crime was proved beyond areasonable doubt.34 We draw all reasonable inferences from the evidence in the State's favor and interpret the 

### evidence most strongly againstthedefendant.35 We assume"thetruth ofthe 

### State's evidence and all inferences thatreasonably can bedrawn therefrom."36 UnderRCW 9A.36.011(1 )(a), "A person is guilty ofassault in the first 

### degree ifhe or she, with intentto inflict great bodily harm: (a) Assaults another

34 State v. Drum. 168 Wn.2d 23, 34-35, 225 P.3d 237 (2010). 35 State v. Joy, 121 Wn.2d 333, 339, 851 P.2d 654 (1993). 36 State v. Salinas. 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).

11No. 69865-6-1/12 with a firearm or any deadly weapon or by any force or means likely to produce great bodily harm or death Payton contends thatthe State failed to present any evidence that shows that he acted with intent to inflictgreat bodily harm. We disagree. G.M. testified that K.Y. fell down with the first hit ofthe hatchet, but Payton 

### continued to swing the hatchet and repeatedly hitK.Y. "like a machine." Dr. Michelle Strong testified that K.Y. suffered at least seven blows based on the lacerations she observed. A rational trier offact could have found from this 

### evidence that Payton acted with intent to inflict great bodily harm. Thus, this argument is not persuasive. 

### For the second degree assault conviction, Payton argues that the State 

### failed to present evidence that Payton inflicted "substantialbodily harm" to G.M.
as defined under RCW 9A.36.021(1)(a). But the State charged and instructed 

### thejury as to second degree assault under RCW 9A.36.021(1)(c). Under RCW 9A.36.021(1)(c), "A person is guilty ofassault in the second degree ifhe or she, under circumstances not amounting to assault in the firstdegree: . . . (c)Assaults anotherwith a deadly weapon." Thus, the infliction ofsubstantial bodily harm
was not an element ofthe crime charged, and this argumentfails. 

### Third, Payton argues that his counsel was ineffective because his counsel failed to make a motion to arrest the jury's guilty verdict for first and second 

### degree assault based on insufficientevidence. Toprevail on a claim of ineffective assistance of counsel, a defendant must show that his counsel's 

### performance fell below an objective standard ofreasonableness and that the

12No. 69865-6-1/13 

### deficient performance prejudiced his trial.37 Here, Payton fails toshow how he
was prejudiced bythe absence of this motion, as his sufficiency of the evidence argument is not persuasive. Failure on the prejudice prong defeats a claim of ineffective assistance of counsel.38 Fourth, Payton contends that the trial court erred when itclosed the court 

### withoutfirst applying the closuretestarticulated in State v. Boneclub.39 Payton cites two pagesin thereport ofproceedings.40 Butthesetwo pagesdo not show that the court was closed to the public. Thus, this argument is not persuasive. 

### Finally, Payton argues that there was no evidence to support the aggressor instruction. We need notaddress this argument again as it is 

### adequately addressed in his appellate counsel's brief41

37 Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 

### 2d 674 (1984); State v. McFarland. 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995).38 Strickland, 466 U.S. at 697; State v. Foster. 140 Wn. App. 266, 273, 166 P.3d 726 (2007). 

### 39 Appellant's Statement ofAdditional Groundsfor Review at 8 (citing State v. Boneclub. 76 Wn. App. 872, 888 P.2d 759, reversed by. 128 Wn.2d 254, 906 P.2d 325 (1995)).
40 Id (citing Report ofProceedings (Aug. 30, 2011) at 631-32). 41 See, e.g.. State v. Gomez. 152 Wn. App. 751, 754, 217 P.3d 391 (2009) 

### (refusing to review a defendant's statement ofadditional grounds because he raised no new issues).
13No. 69865-6-1/14 We vacate the trial court's order dismissing count Iwithout prejudice and remand for the order to be corrected. We affirm thejudgment and sentence as to
counts II and III. 

# ^bxcn

WE CONCUR: 

### \

14