IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II

STATE OF WASHINGTON, No.58046-2-II

Respondent,

v.

UNPUBLISHED OPINION

GATA LEILUA,

Appellant.

MAXA, J. – Gata Leilua appeals his second degree assault conviction and his sentence. 

The conviction is based on a physical altercation between Leilua and Adam Cunningham at the 

Thurston County jail in which Leilua repeatedly punched Cunningham in the face. Cunningham 

sustained bruising to his face and head and a cut under his eye that resulted in a scar.

We hold that (1) the evidence was sufficient to support Leilua’s second degree assault 

conviction because Cunningham sustained substantial bodily injury, (2) the trial court did not err 

in refusing to give a self-defense instruction because the evidence did not support one, and (3) 

the $500 crime victim penalty assessment (VPA) must be stricken from the judgment and 

sentence.

Accordingly, we affirm Leilua’s conviction, but we remand for the trial court to strike the 

VPA from the judgment and sentence.

FACTS

In December 2022, Leilua punched Cunningham several times while both were confined 

at the Thurston County jail. The State charged Leilua with second degree assault.

Filed

Washington State

Court of Appeals

Division Two

June 18, 2024
No.58046-2-II

2

Tyler Graham, a sergeant for the Thurston County sheriff’s office, testified that he 

responded to the incident between Leilua and Cunningham. He stated that Cunningham 

appeared dazed and stunned. Graham testified that Cunningham had blood coming from his 

nose and mouth, swelling around his eye, and a bleeding cut on his face.

Graham also testified that he reviewed the surveillance video footage to try and 

determine what happened between Leilua and Cunningham. He looked at the time frame 

immediately before the incident and he saw Cunningham following Leilua around the dayroom 

and then standing in the doorway to Leilua’s cell. Graham stated that this was odd because 

inmates were not allowed to go into other inmates’ cells.

Graham wanted to determine whether Cunningham was following Leilua around in order 

to pursue or corner Leilua, so he went further back in the video record. About 10 minutes before 

the incident, Graham testified that he observed Cunningham sitting on the floor of his cell while 

Leilua punched him.

On cross-examination, Graham stated that inmates were not allowed to go into each 

other’s cells as a security measure. Defense counsel asked Graham whether it “[w]ould it be 

considered confrontation to try to enter somebody’s cell without their permission.” Rep. of Proc. 

(RP) at 255. Graham responded that it “could be.” RP at 255. But on redirect examination, the 

prosecutor asked Graham, “So just because somebody’s standing at another’s cell door did not 

mean to you, based on your experience, that that’s a confrontational exchange?” RP at 257. 

Graham responded, “Not necessarily.” RP at 257.

Chase Vandiver, a Thurston County sheriff’s deputy, also responded to the incident at the 

jail. The State offered into evidence pictures that Vandiver took of Cunningham after the 

incident. Vandiver noted that Cunningham had a black eye, a cut on his face that had to be glued 
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shut, and swelling in his left eye. Cunningham also had marks or bruising behind his ear and on 

his forehead.

James Brown, a nurse at the Thurston County correctional facility, responded to the 

incident to provide medical service. Brown testified that he provided medical aid to 

Cunningham and that Cunningham had the beginning of bruising on his face, abrasions, a few 

lacerations, and blood in his mouth. A few of the cuts were too deep for Brown to clean up.

Brown suspected that Cunningham may have suffered from a concussion. Upon Brown’s 

recommendation, the jail transferred Cunningham to the hospital. Brown testified that a few 

days after the incident Cunningham still had some bruises on his face. Photographs showed that 

the cut under Cunningham’s left eye had been closed with Steri-Strips.

Vandiver testified that he met with Cunningham at the jail a few weeks after the incident, 

and Cunningham had a “scar” under his eye. RP at 268. But he no longer had facial bruising. 

Cunningham did not testify at trial, so there was no evidence how the injuries affected 

him. And the State did not present any medical records at trial, and there was no evidence that 

Cunningham had been diagnosed with a concussion.

When discussing jury instructions, the trial court asked about jury instructions addressing 

self-defense and unlawful force. Leilua argued that Cunningham’s apparent attempt to enter 

Leilua’s cell was an aggressive act that was some evidence that Leilua was acting in self-defense. 

The trial court ruled that viewing the evidence in the light most favorable to Leilua, the record 

did not support giving a self-defense instruction.

The jury found Leilua guilty of second degree assault. The trial court determined that 

Leilua was indigent. But the court ordered Leilua to pay the $500 VPA.

Leilua appeals his conviction and sentence.
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ANALYSIS

A. SUFFICIENCY OF EVIDENCE – SUBSTANTIAL BODILY HARM

Leilua argues that the evidence was insufficient to convict him of second degree assault 

because Cunningham did not suffer substantial bodily harm. We disagree.

1. Legal Principles

The test for determining the sufficiency of evidence is whether any rational trier of fact 

could find the elements of the charged crime beyond a reasonable doubt after viewing the 

evidence in a light most favorable to the State. State v. Scanlan, 193 Wn.2d 753, 770, 445 P.3d 

960 (2019). We resolve all reasonable inferences based on the evidence in favor of the State and 

interpret inferences most strongly against the defendant. Id.

Under RCW 9A.36.021(1)(a), an individual commits second degree assault by

intentionally assaulting another and recklessly inflicts substantial bodily harm under 

circumstances not amounting to first degree assault. “ ‘Substantial bodily harm’ means bodily 

injury which involves a temporary but substantial disfigurement, or which causes a temporary 

but substantial loss or impairment of the function of any bodily part or organ, or which causes a 

fracture of any bodily part.” RCW 9A.04.110(4)(b). The term “substantial” is not defined by 

statute. State v. McKague, 172 Wn.2d 802, 805, 262 P.3d 1225 (2011).

In McKague, the Supreme Court held that the term substantial “signifies a degree of harm 

that is considerable and necessarily requires a showing greater than an injury merely having 

some existence.” Id. at 806. The court approved the dictionary definition of substantial as 

“ ‘considerable in amount, value, or worth.’ ” Id. (quoting WEBSTER’S THIRD NEW 

INTERNATIONAL DICTIONARY 2280 (2002)).
No.58046-2-II

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The defendant in McKague was convicted of second degree assault after the defendant 

punched a storeowner in the head several times and pushed him to the ground, causing the 

storeowner to strike his head against the pavement. 172 Wn.2d at 804. The storeowner had 

bruising around his eye, a scalp contusion, and lacerations to his face, head, and arm. Id. at 804. 

The storeowner also was diagnosed with a concussion and a possible fracture of his facial bones. 

Id.

The court held that this evidence was sufficient to support the substantial bodily harm 

element of the defendant’s second degree assault conviction. Id. at 807. The court stated, “[The 

storeowner’s] resulting facial bruising and swelling lasting several days, and the lacerations to 

his face, the back of his head, and his arm were severe enough to allow the jury to find that the 

injuries constituted substantial but temporary disfigurement.” Id at 806. The court also stated 

that the concussion “was sufficient to allow the jury to find that he had suffered a temporary but 

substantial impairment of a body part or an organ’s function.” Id.

In a pre-McKague case, this court held that “serious bruising can rise to the level of 

‘substantial bodily injury’ if the State produces sufficient evidence of temporary but substantial 

disfigurement.” State v. Hovig, 149 Wn. App. 1, 13, 202 P.3d 318 (2009). In that case, the court 

concluded that the State had proved substantial bodily harm when the defendant bit a baby in the 

cheek, leaving a bright red bruise mark the size of a quarter that lasted between seven and 14 

days. Id. at 6, 13.

2. Analysis

The issue here is whether Cunningham’s facial abrasions, lacerations, and facial bruising 

constitutes “substantial bodily harm,” defined as a “considerable” degree of harm. McKague, 

172 Wn.2d at 806. The evidence regarding how long the bruising lasted was testimony that the 
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bruising was still there a few days later, but was gone a few weeks later. So the State proved 

only that the bruising lasted a few days. There was no evidence regarding how long most of the 

lacerations and abrasions lasted. But the laceration under Cunningham’s left eye resulted in a 

“scar” that was visible a few weeks later. RP at 268.

Cunningham had less serious injuries than the storeowner in McKague. The facial 

bruising lasted only three days and there was no concussion diagnosis. And there is some issue 

as to whether the bruising was “serious” as noted in Hovig. 149 Wn. App. at 13. However, 

Cunningham had a scar under his eye. Viewing the evidence in a light most favorable to the 

State, a reasonable jury could find that a scar represents a “temporary but substantial 

disfigurement.” RCW 9A.04.110(4)(b). Therefore, we conclude that the evidence was sufficient 

to find that Cunningham suffered substantial bodily harm.

We hold that the evidence was sufficient to support Leilua’s second degree assault 

conviction.

B. SELF-DEFENSE JURY INSTRUCTION

Leilua argues that the trial court violated his right to present a defense when it refused to 

instruct the jury on self-defense. We disagree.

1. Legal Principles

A defendant is entitled to an instruction on their theory of the case if evidence supports 

that theory. State v. Moreno, 14 Wn. App. 2d 143, 161, 470 P.3d 507 (2020). And a defendant 

is entitled to a self-defense instruction if there is some evidence demonstrating self-defense. Id. 

at 161-62. “To prove self-defense, there must be evidence that (1) the defendant subjectively 

feared that he was in imminent danger of death or great bodily harm, (2) this belief was 

objectively reasonable, and (3) the defendant exercised no greater force than reasonably 
No.58046-2-II

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necessary.” Id. However, a defendant may not point to the State’s absence of evidence in order 

to satisfy their burden. State v. Fisher, 185 Wn.2d 836, 850, 374 P.3d 1185 (2016).

We review de novo whether a defendant was entitled to a self-defense instruction. Id. at 

849. The defendant is entitled to the benefit of all the evidence and so a self-defense instruction 

may be based on facts that are inconsistent with the defendant’s testimony. Id.

2. Analysis

Leilua points to Graham’s testimony that the surveillance video showed Cunningham 

following Leilua around just before Leilua hit Cunningham and that entering another inmate’s 

cell could be considered confrontational. Based on this evidence, he claims that the jury could 

have found that Cunningham provoked Leilua and Leilua feared that he was in imminent danger 

of bodily harm.

But Graham’s testimony does not demonstrate that Leilua subjectively feared he was in 

imminent danger of death or great bodily harm. No witness testified why Cunningham was 

following Leilua nor that Leilua felt threatened. And Graham merely testified that when he saw 

Cunningham following Leilua and standing in the doorway of Leilua’s cell, it seemed odd 

because inmates were not supposed to go into other inmate’s cells. Although he stated that it 

could be considered confrontational for an inmate to try and enter another inmate’s cell without 

their permission, he later testified that it was not necessarily a confrontational exchange. But 

regardless, these statements were in response to hypothetical situations and not directly 

commenting on the situation between Leilua and Cunningham.

Leilua relies on State v. Werner, 170 Wn.2d 333, 241 P.3d 410 (2010). In Werner, the 

Supreme Court held that the defendant was entitled to a self-defense jury instruction after his gun 

accidentally went off while seven dogs were circling him. 170 Wn.2d at 336, 338. The 
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defendant had stated that he was afraid and the court held that his fear was reasonable, given he 

was being surrounded by seven snarling dogs. Id. at 337-38.

Here, there is no evidence that Cunningham was threatening Leilua. Following a person 

around is hardly similar to being surrounded by seven snarling dogs. And no witness testified 

that Leilua was afraid of Cunningham.

Leilua also points out that no witness saw or testified to what happened immediately 

before the incident. But a defendant may not point to the absence of evidence in order to satisfy 

their burden. Fisher, 185 Wn.2d at 850.

Therefore, we hold that the trial court did not err in refusing to give a self-defense 

instruction because the evidence did not support one.

C. CRIME VICTIM PENALTY ASSESSMENT

Leilua argues, and the State concedes, that the $500 VPA should be stricken from his 

judgment and sentence. We agree.

Effective July 1, 2023, RCW 7.68.035(4) prohibits courts from imposing the VPA on 

indigent defendants as defined in RCW 10.01.160(3). See State v. Ellis, 27 Wn. App. 2d 1, 16, 

530 P.3d 1048 (2023). For purposes of RCW 10.01.160(3), a defendant is indigent if they meet 

the criteria in RCW 10.101.010(3). Although this amendment took effect after Leilua’s 

sentencing, it applies to cases pending on appeal. Ellis, 27 Wn. App. 2d at 16.

The trial court determined that Leilua was indigent. Therefore, on remand the $500 VPA 

must be stricken from the judgment and sentence.

CONCLUSION

We affirm Leilua’s conviction, but we remand for the trial court to strike the VPA from 

the judgment and sentence.
No.58046-2-II

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A majority of the panel having determined that this opinion will not be printed in the 

Washington Appellate Reports, but will be filed for public record in accordance with RCW 

2.06.040, it is so ordered.

MAXA, J.

We concur:

CRUSER, C.J.

CHE, J.