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

v. KENNETH FRANKLIN MILLER, Appellant. No. 68574-1-

ORDER WITHDRAWING AND SUBSTITUTING OPINION



### On September 3, 2014, theWashington Supreme Courtentered an order 

### granting thepetition for reviewfiled by the State ofWashington andremanded to this courtin light ofthe decision in State v. Johnson, 180Wn.2d 295, 325 P.3d 

### 135 (2014). Thepanel hasdetermined that theopinion filed onOctober28, 2013 should be withdrawn and a substitute opinionfiled affirming the conviction. Now, therefore, it is hereby 

### ORDERED that the opinion filed on October 28, 2013 shall be withdrawn 

### and a substitute unpublished opinion affirming the conviction shall be filed. 

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# tot, <• 0IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON STATE OF WASHINGTON, Respondent,

v. KENNETH FRANKLIN MILLER, 

### Appellant. No. 68574-1-1 DIVISION ONE

UNPUBLISHED OPINION

FILED: February 9, 2015 Schindler, J. — Kenneth Franklin Miller appeals his conviction ofassault inthe 

### second degree. Miller asserts the jury instructions misstate the law and relieve the State of its burden of proof by stating thejury need only findthat he disregarded a "wrongful act" ratherthan "substantial bodily harm." Adhering to our decision inState v. Johnson. 172 Wn. App. 112, 297 P.3d 710 (2012), we reversed. State v. Miller, 177 

### Wn. App. 1019, 2013 WL5800748. InState v. Johnson. 180 Wn.2d 295, 307-08, 325 

### P.3d 135 (2014), the Washington Supreme Court held that the instruction defining "reckless" need not include the specific statutory language where the to-convict instruction properly set forth the elements ofthe crime. The court granted the petition for review inthis case and remanded for reconsideration in light ofJohnson. Consistent withthe Supreme Court decision inJohnson, we affirmthe conviction.No. 68574-1-1/2 United Parcel Service (UPS) driver Randall Rasar delivered packages to Kenneth Franklin Miller's house in Bellevue approximately once every other month for 10 to 15 years. On November 6, 2009, UPS notified Millerthat he needed to sign for the delivery 

### scheduled that evening. Atapproximately 6:00 p.m., Rasar parked the UPS truck at the end ofthe sloping driveway leading to Miller's house and walked up the driveway to the front porch. 

### Miller said that Rasar rang the doorbell "several times" and "pound[ed]" on the 

### door with his flashlight. Miller said that after Rasarwalked down the stairs of the front porch, he turned around and told Miller, "[Ejnjoy your packagejerk." According to Rasar, he rang the doorbell only once and "tapped" on Miller's door with his flashlight. Rasar admitted that as he was leaving, he muttered, "What a jerk, under [his] breath." 

### Rasartestified that he was only a few feet from the truck when Miller grabbed him from behind, shoved him into the side ofthe truck, and began punching him inthe 

### back of his head and body. Rasar suffered a broken nose and abrasions on his face,
arms, knees, and hip. 

### The State charged Millerwith assault in the second degree of Rasar. The State alleged that Miller intentionally assaulted Rasar and recklessly inflicted substantial bodily harm. Miller asserted he used lawful force to defend himself. The State called a number ofwitnesses to testify at trial. Millertestified and 

### denied hitting Rasar. Miller said that he pushed Rasar down the driveway after Rasar hit him. A doctor testified that Miller had a number of contusions and bruises on his "rightcheek, leftforearm, [and] right elbow."No. 68574-1-1/3 

### The court instructed the jury on self-defense. The court refused to give an instruction proposed by the defense that defines "reckless" to mean acting "with the 

### intent to cause substantial bodily harm"1 and an instruction on battery. The jury convicted Miller ofassault inthe second degree. On appeal, Miller argued thejury instructions misstated the law by incorrectly defining "reckless" as "a wrongful act," thereby relieving the State of its burden of 

### proving an essential element ofassault inthe second degree.2 We adhered to our decision in Johnson and reversed. InJohnson. 172 Wn. App. at 112, we addressed whether a jury instruction defining "reckless" as "a wrongful act" lowered the State's burden of proof. InJohnson, the State charged the defendant with three counts of assault in the second degree. Johnson. 172 Wn. App. at 118. The to-convict instruction properly required the State to prove that the defendant" 'recklessly inflicted substantial bodily harm.'" Johnson. 172 

### Wn. App. at 129-30.3 But the instruction defining "reckless" required the State to

1The defense instruction defining "reckless" states: A person is reckless or acts recklessly when he knows of and disregards a substantial risk that substantial bodily injury may occurand disregarding this risk is a gross deviation from conduct that a reasonable person would exercise in the same situation. A person also recklessly causes substantial bodily harm ifhe acted with the intent to cause substantial bodily harm. 2RCW 9A.36.021 defines the crime ofassault in the second degree, in pertinent part: (1) A person is guilty ofassault inthe second degree if he or she, under circumstances not amounting to assault in the first degree: (a) Intentionally assaults another and thereby recklessly inflicts substantial bodily harm. RCW 9A.08.010(1)(c) defines "reckless" as follows: A person is reckless or acts recklessly when he or she knows of and disregards a substantial risk that a wrongful act may occur and his or her disregard of such substantial risk is a gross deviation from conduct that a reasonable person would exercise in the same situation. 3Emphasis omitted.No. 68574-1-1/4 prove the defendant disregarded the risk of" 'a wrongful act.'" Johnson. 172 Wn. App. 

### at 130.4 We reversed and held the jury instruction defining "reckless" should have used the specific statutory language for assault inthe second degree of "substantial bodily harm" rather than "wrongful act." Johnson. 172 Wn. App. at 132-33. The Washington State Supreme Court reversed. State v. Johnson. 180 Wn.2d 295, 307-08, 325 P.3d 135 (2014). The court held that where the to-convict instruction properly set forth the elements ofthe crime, the instruction defining "reckless" need not include the specific statutory language. Johnson. 180 Wn.2d at 306. The court also held the instruction defining "reckless" did not relieve the State of its burden of proof because the to-convict instruction properly laid out the essential elements ofthe crime ofassault inthe second degree. Johnson. 180 Wn.2d at 306. Because the " 'to convict' 

### instruction!,] the primary 'yardstick' thejury uses to measure culpability," was accurate, "[t]aken in their entirety," the instructions were sufficient. Johnson. 180 Wn.2d at 306. 

### It is not errorto instruct thejury on the generic definition of"reckless" as long as thejury is also given a "to convict" instruction that lists every element ofthe crime the State needs to prove in order to convict the defendant, including the charge-specific language for "reckless." Johnson. 180 Wn.2d at 298. 

### Here, as inJohnson, although the definition of"reckless" defines "a substantial risk" as "a wrongful act," the to-convictjury instruction correctly states that the State 

### must prove beyond a reasonable doubt that Miller recklessly inflicted substantial bodily

4Emphasis in original.No. 68574-1-1/5 

### harm.5 The to-convict jury instruction states: To convict the defendant ofthe crime of assault in the second 

### degree, each ofthe following elements ofthe crime must be proved beyond a reasonable doubt: 

### (1) That on or about the 6th day of November, 2009, the defendant intentionally assaulted Randall Rasar; (2) That the defendant thereby recklessly inflicted substantial bodily harm on Randall Rasar; (3) That the defendantwas not acting in self-defense; and (4) That the acts occurred inthe State ofWashington. Ifyou find from the evidence that each ofthese elements has been proved beyond a reasonable doubt, then itwill be your duty to return a verdict of guilty. On the other hand, if, after weighing all ofthe evidence, you have a 

### reasonable doubt as to any one ofthese elements, then itwill be your duty to return a verdict of not guilty. 

### Miller also argues the court erred by refusing to give the instruction the defense proposed on battery. We disagree. "Assault by battery does not require specific intent to inflict harm or cause apprehension; rather, battery requires intent to do the physical 

### act constituting assault." State v. Hall. 104Wn. App. 56, 62, 14 P.3d 884 (2000). The court did not err in refusing to give the defense instruction on battery. 

### Miller contends the court violated his right to present a defense by refusing to give his proposedjury instruction on "defense of property." Adefendant is entitled to have the court instruct thejury on its theory ofthe case 

### ifevidence supports the instruction. State v. Hughes. 106 Wn.2d 176, 191, 721 P.2d 902 (1986); see also State v. Walden. 131 Wn.2d 469, 473, 932 P.2d 1237 (1997) ("To

5The jury instruction defining "reckless" states: A person is reckless or acts recklessly when he or she knows of and disregards a substantial risk that a wrongfulact or result may occur and this disregard is a gross deviation from conductthat a reasonable person would exercise in the same situation. When recklessness is required to establish an element of a crime, the element is also established ifa person acts intentionally or knowingly as to that fact or result. Miller objected to the court's instructions"to the extent these instructions are not the same as what I offered."No. 68574-1-1/6 be entitled to a jury instruction on self-defense, the defendant must produce some evidence demonstrating self-defense."). A defendant is not entitled to an instruction that is not supported by the evidence. State v. Ager. 128 Wn.2d 85, 93, 904 P.2d 715 (1995). The court reviews the denial of a proposed instruction based on the evidence at trial for abuse ofdiscretion. State v. Walker. 136 Wn.2d 767, 771-72, 966 P.2d 883 (1998). To determine ifthe evidence supports giving the proposedjury instruction, the court views the evidence inthe light most favorable to the defendant. State v. Fernandez-Medina. 141 Wn.2d 448, 455-56, 6 P.3d 1150 (2000). It is a defense to the charge ofassault that the force used was lawful. See State

v. McCullum. 98 Wn.2d 484, 494, 656 P.2d 1064 (1983) (self-defense negates the intent element of a crime). Use offorce is lawfulwhen used by a party "inpreventing or attempting to prevent... a malicious trespass, or other malicious interference with real or personal 

### property lawfully in his or her possession," so long as the force "is not more than is necessary." RCW 9A.16.020(3). RCW 9A.16.020 states, in pertinent part: 

### The use, attempt, or offer to use force upon or toward the person of another is not unlawful in the following cases: 

### (3) Whenever used by a party aboutto be injured, or by another lawfullyaiding him or her, in preventing or attempting to prevent an 

### offense against his or her person, or a malicious trespass, or other malicious interference with real or personal property lawfully in his or her possession, in case the force is not more than is necessary.^ Viewed inthe lightmost favorable to Miller, sufficient evidence did not support 

### giving a jury instruction on defense of property. The defense theory at trialwas that Miller was acting in self-defense, not defense of his property. During cross6Emphasis added.No. 68574-1-1/7 

### examination, Miller specifically denied he was acting in defense of his property. Q: When this incident happened, when Mr. Rasar ended up on the side ofthat truck, you were not defending your property. A: Iwas defending my person. 

### Q: Okay. Iasked you, were you defending your property? A: No. On redirect, Millertestified he was acting in self-defense. 

### Q: So when you said you were not defending your property when you pushed him down the driveway, did you mean because you were 

### not responding to the damage to your door. Is that correct? A: He had struck me and Iwas, yeah, trying not to get, excuse me, hit again and so

### Q: So why did you push him all the way down the driveway? A: Because Iwanted him off my property. 

### Q: In that sense you were defending your property? A: Iwas struck in the face and Iwas trying not to get struck again, so I figured Ishould be safe on my own property. 

### The courtinstructed thejury on self-defensebut, based on Miller's testimonythat 

### he was "not acting in defense ofhis property," refused togive theproposed instruction on defense ofproperty. Thecourtdid not errin refusing toinstructthejury on defense of property. 

### State v. Bland. 128Wn. App. 511, 116 P.3d 428 (2005), isdistinguishable. In 

### Bland, theelderly defendant chased a guestaround his house andinto a bedroom with 

### agun afterthe guestthreatened him and refused toleave. Bland. 128Wn. App. at516- 17. Thecourt instructed thejury on the defense ofproperty, and thejury convicted the defendant ofassault in the second degree. Bland. 128 Wn.App. at 513. This court 

### reversed, holding that theinstruction given was erroneous because it "could be understood torequire afinding that a defendantreasonably believed that he was about 

### to beinjured in preventing a malicious trespass." Bland. 128Wn. App. at514. BecauseNo. 68574-1-1/8 such belief is not a requirement ofdefense ofproperty, the court held that the instruction confused the distinction between self-defense and defense ofproperty. Bland. 128 Wn. App. at 515-16. Milleralso contends the court erred in instructing thejury that if itfinds each 

### element ofassault in the second degree, "then itwill be your duty to return a verdict of guilty." InState v. Meggyesv. 90 Wn. App. 693, 958 P.2d 319 (1998), we squarely 

### addressed and rejected the same argument. See Meggyesv. 90 Wn. App. at 699-701 (a court does not err by instructing a jury that ithas a duty to convict if it finds all of the elements ofthe crime proven beyond a reasonable doubt), abrogated on other grounds bv State v. Recuenco. 154Wn.2d 156, 110P.3d 188(2005). We affirmthejury conviction ofassault inthe second degree. 

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WE CONCUR: 

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