### IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II STATE OF WASHINGTON, No. 57486

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- II Respondent,

v. RICKY LEVALE FULLER, UNPUBLISHED OPINION Appellant.
G LASGOW , C.J.

— After an altercation with his intimate partner , the State charged Ricky
Levale Fuller with one count of second degree assault by strangulation. The case proceeded to a jury trial

. A fter both parties rested, t he State proposed an inferior degree jury instruction on fourth degree assault. Fuller objected , contending that no evidence existed to support the instruction . The trial court nevertheless gave the instruction, reasoning that the jury could, based on the evidence
submitted , find that a lesser nonstrangulation assault occurred . The jury acquitted Fuller of second degree assault but found him guilty of fourth deg ree assault. Fuller appeals his convic ti on . He argues that the trial court erred in granting the State’s request to instruct the jury on fourth degree assault because other than impeachment evidence discrediting the victim, there was no affirmative evidenc e to support a finding that only a fourth degree assault occurred

. Filed Washington State Court of Appeals Division Two December 12, 2023No. 574 86

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We hold that the trial court did not abuse its discretion when it found that t he evidence permitted a jury to rationally find Fuller guilty of fourth degree assault but not second degree

as sault by strangulation

. Thus, the trial court prop erly gave the fourth degree assault instruction.
W e affirm Fuller’s conviction.
FACTS
Fuller and MH had an intimate relationship. On November 18, 2021, at MH ’s invitation,
Fuller went to her house. Shortly after Fuller arrived, MH confronted him about seeing another

woman. The confrontation escalated into a physical altercation, MH’s family members intervened, and MH was taken to the hospital. The State charged Fuller with one count of second degree assault by strangulation and alleged that the crime was committed against an intimate partner.
I. D IFFERENT A CCOUNTS OF THE I NC ID ENT At trial, Fuller and MH did not dispute that MH ended up on the ground near the front door and that she was injured. But they disputed how she was injured

. A. MH’s Account of the Incident and Supporting Testimony
MH testified that after she confronted Fuller, Fuller grabbed her neck with his right hand
and slammed her down to the floor. She said that she landed really hard on her back. Fuller kept his hand on her neck for “a couple [of] minutes,” she had difficulty breathing, and she urinated
and defecated on herself. Verbatim Rep. of Proc. ( VRP ) at 133

. Immediately after the incident, MH said that she felt dizzy and was unable to stand up straight. She experienced pain and swelling in her neck. She also noticed some marks on her neck.No. 574 86

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One of MH’s son s said that he was about two blocks away when the in cident happened. He rushed home after receiving a phone call where he heard his mother screaming for help

. W hen he got home, he observed that MH “couldn’t get a word out because she was just in pain so much
and scared for her life.” VRP at 147. He also not iced that her voice was “a little” different, and she was having difficulty breathing and balancing herself. VRP at 148

- 49. He smelled the urine and
feces on her. A police officer arrived about 10 minutes after the incident. The police officer testified t hat when he saw MH, she was “pretty distraught , ” gasping for breath and struggling to talk. VRP at
175

- 76. He remembered seeing a one

- inch scratch mark and some bruising on the left side of MH’s
neck. But he did not recall seeing or smell ing any urine or f eces on her. After the police arrived, MH was taken to hospital by ambulance. At the hospital, she was
told that she had a black bruise on the left side of her neck where Fuller grabbed her.
A forensic examiner with expertise in strangulation explained to the jury that not all cases of strangulation present the same physical symptoms. In general, forensic examiners will look for petechiae (small ruptured blood vessels in the face), bruising, redness, swelling, dizziness, headaches, nausea, vision changes , voice changes, cough, and difficulty in swallowing. The expert also stated that a person might involuntarily urinate or defecate when being strangled. The forensic examiner noted that bruising and swelling tend to take 24 to 4 8 hours to appear. For this reason, in practice, external marks are less common signs of strangulation because victims are either seen by medical personnel before the marks appear or long after they have disappeared. In addition to short

- term symptoms, strangulation may also have lo ng
- term side effects, such as memory problems, increased possibility of strokes, and chronic headaches. TheNo. 574 86

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forensic examiner provided general testimony about strangulation only ; she did not examine or
treat MH after the incident , and she did not opine abo ut the facts of this case

. B

. Fuller’s Account of the Incident
Fuller testified at trial and denied strangling MH or doing anything that might have caused
the mark on her neck.
Fuller testified that when MH confronted him about having a relationship with another woman, he stood up to leave. On his way out, MH rammed him and shoved him up against the
wall. As MH grabbed his shirt and was about to swing her right hand, Fuller put up his arm to block and push ed her away with his right hand to reach for the door. Then MH tripped over the edge of the chair by the door and fell down to the ground. On direct examination, Fuller admitted that he pushed MH

. He testified that he “went to push [MH] away so [he] could o pen the door.” VRP at 189. He further stated that: “as I [was] pushing her back

. . . the end of the chair

. . . [ was] where she tripped and fell.” Id. B ut on cross

examination, he denied having pushed MH

. Instead, he said that MH tripping over the cha i r w as

“ t he only way she fell. ” VRP at 198

. Fuller also argued that MH’s physical distress and shortness
of breath after the altercation resulted from exertion and her preexisting health conditions, including a blood clot issue that MH admitted that she had at the time of the incident. Fuller said that he had previously been injured in a serious motor vehicle accident in 2017.
He stated that the accident initially “immobilized” the right side of his body, including his right hand, and it took him about three years to “learn to use [his] right side.” VRP at 1 90 . However,
Fuller was able to use his right hand to do basic tasks, such as opening doors. On cross

examination, he said that he was functional enough to drive at the time of the incident

.No. 574 86

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5 II. J URY I NSTRUCTIONS AND V ERDICT After both parties rested, the State proposed an inferior degree jury instruction o n fourth degree assault, in addition to the charged crime of second degree assault. Fuller o bjected, contending that his defense was either that a second degree assault occurred or that no assault occurred at all, and there was no evidence to support a fourth degree assault

. The trial court gave the jury instruction over Fuller’s objection . The c ourt reasoned that

some evidence , including the lack of petechiae and the police officer ’ s testimony about no smell of urine or defecation, might cause the jury to doubt MH’s testimony and create a reasonable doubt
about whether the strangulation occurred

. But the jury could still find that an assault of some level
did occur based on the testimony that Fuller push ed MH to the ground

. The jury acquitted Fuller of second degree assault but found him guilty of fourth degree
assault. The trial court imposed a sentence of 364 days , close to the maximum sentence for fourth degree assault, but with 363 days suspended

. Fuller appeals his conviction.
ANALYSIS
I NFERIOR D EGREE I NSTRUCTION When a defendant is charged with “an offense consisting of different degrees, th e jury may find the defendant not guilty of the degree charged in the indictment or information, and guilty of any degree inferior thereto.” RCW 10.61.003 . A n instruction about a n inferio r degree is proper
when “ ‘ the statutes for both the charged offense a nd the proposed inferior degree offense

‘ proscribe but one offense ,’” (the legal prong) and “ ‘ there is evidence that the defendant committed only the inferior offense , ’ ” (the factual prong). State v. Coryell , 197 Wn.2d 397, 41 0 , 483 P.3d 98No. 574 86

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(2021) (internal quotation marks omitted) (quoting State v. Peterson , 133 Wn.2d 885, 891, 948
P.2d 381 (1997))

. 1 The parties agree that the legal prong of the test is satisfied here

. The parties dispute whether the evidence in the record satisfies the factual prong of the test. Specifically, they dispute
whether affirmative evidence existed to support a rational jury conclusion that only fourth degree
assault occurred

. We conclude that the trial court properly gave the fourth degree assault
instruction.
A

. The Factual Prong of the T est
W e review the trial court’s resolution of the factual prong of the test for abuse of discretion

. State v. Boswell , 185 W n
. App. 321, 333, 340 P.3d 971 (2014)

. An abuse of discretion occurs only
wh en a trial court ’ s exercise of its discretion is manifestly unreasonable or based on untenable grounds or reasons. State v. Dye , 178 W n .2d 541, 548, 309 P.3d 1192 (2013)

. Recently, in Coryell, the Washington Supreme Court acknowledged that some prior case law had generated confusion about the factual prong by stating that “the evidence must raise an inference that only the lesser included/inferior degree offense was committed to the exclusion of
the charged of

fense

. ” 197 Wn.2d at 408 (emphasis omitted and added) (quoting Fernandez Medina, 141 Wn.2d 448, 455, 6 P.3d 1150 (2000) )

. As a result, courts were improperly weighing
the evidence. Id. at 414

- 15. The Coryell court clarified that the factual prong is satisfied if “based

on some evidence admitted, the jury could reject the greater charge and return a guilty verdict on the lesser.” Id. at 4 07

. S ome evidence must be presented to affirmatively establish that the

1 T he Washington Supreme Court in Coryell , reiterated that the factual prong analysis is the same for both lesser included offense s and inferior degree offense s , and it is the factual prong that is in dispute here. 197 Wn.2d at 415.No. 574 86

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defendant committed the inferior degree off ense ; it is not enough that the jury might simply disbelieve the evidence pointing to guilt of the charged crime

. Id. at 415. Such affirmative evidence
can “ include evidence elicited on cross

- examination, such as impeachment evidence, evidence of bias, or inability to recall .” Id. at 4 08

. In Coryell , after an al tercation with his girlfriend , the defendant was charged with second degree assault by strangulation

. Id. at 404

. At trial, the victim testified that the defendant put his
hand around her neck two separate times. The first time did not impact her ability to breathe , whereas the second time did

. Id. at 4 17

. The defendant denied strangling the victim but admitted that he pinned the victim against a wall. Id at 402, 417

. He also argued that any force he used did not prevent the victim from breathing , as required by the statutory definition of strangulation. Id

at 4 17. The police officer who responded to the incident testified that he saw a roughly two

- inch
abrasion and signs of welts on the victim’s neck, but no petechial hemorrhaging , which wa s often
evidence of strangulation

. Id

. at 403

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. The trial court declined the defendant’s request to give an inferior degree jury instruction on fourth degree assault. Id

. at 4 04

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. On appeal, t he Washington Supreme C ourt reversed the trial court’s ruling, holding that the evidence supported an inference that the defendant assaulted, but did not strangle, the victim

. Id

. at 418. B ased on the evidence submitted including the police officer’s testimo ny about the lack
of petechial hemorrhaging and the victim’s testimony that she was able to breathe the first time the defendant put his hand around her neck, the jury could have had reasonable doubt about
whether the strangulation occurred

. Id at 41 7

- 19. But the jury might have reasonably believed that
some level of assault was nevertheless committed , for example , when the defendant pinned hisNo. 574 86

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girlfriend against a wall or when he put his hand around her neck the first time, but did not block
her blood or a irflow

. Id

. B

. Applying the Factual Prong to the Facts in This Case
Fuller contends that no affirmative evidence exist ed to warrant the jury instruction for fourth degree assault

. He a rgu es that there were “only two options from the evidence at trial : ” either Fuller “committed second degree assault by strangulation, or

. . . no assault occurred.” Br.
of Appellant at 1 5. We disagree.
1. Elements of the relevant offenses The State charged Fuller with second degree assault

. One way a person can be guilty of second degree assault is if they assault another by strangulation. RCW 9A.36.021(1)(g)

.

“ Strangulation ” means “to compress a person ’ s neck, thereby obstructing the person ’ s blood flow or ability to breathe, or doing so with the intent to obstruct the person ’ s blood flow or ability to
breathe.” RCW 9A.04.110(26). A person is guilty of fourth degree assault if they assault another.
Former RCW 9A.36.041(1) (2020) . Fourth degree assault does not include strangulation; instead,
it specifically requires circ umstances “ not amounting to ” second degree assault. Id. (emphasis added)

. Assault occurs when one unlawfully touch es another with criminal intent. State v. Hahn , 174 Wn.2d 126, 129, 271 P.3d 892 (2012).
We must determine whether the trial court abused its discretion by concluding that
affirmative evidence in the record permit ted a jury to rationally find that Fuller assaulted MH but did not strangle her

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2. Affirmative evidence supporting fourth degree assault Viewing the evidenc e in the light most favorable to the State as the party requesting the
instruction , the testimonial evidence in this case supported the inference that Fuller committed only fourth degree assault

. Coryell , 197 Wn.2d at 415

. Both parties submitt ed evidence that could affirmatively establish a nonstrangulation
assault

. During his testimony, Fuller admitted that he pushed MH away to open the front door , and
then MH trip ped over the chair by the door and fell down

. MH testified that Fuller shoved her
down to th e ground near the front door and she fell hard on her back

. T he testimony of MH ’s son
and the police officer about MH ’s demeanor immediately after the incident , such as her “distraught” look and her difficulty in speaking, breathing, and balancing herself , could also support the inference that she had been assaulted. VRP at 147

- 49, 175. Viewing this evidence in the light most favorable to the party requesting the instruction as we must, this amounted to
sufficient evidence that Fuller assaulted MH without strangling her.
Fuller , rel ies on State v. Brown , 127 Wn.2d 749, 903 P.2d 459 (1995 ) to contend that there

was no t affirmative evidence of fourth degree assault , only testimony that might discredit MH. But Coryell is far more relevant than Brown

. In Brown , the court found no affirmative evidence, only “ [ i ] mpeachment evidence that serve[d] only to discredit” the victim, was offered to support the lesser crime. 127 Wn.2d at 755. Notably, Coryell has since explained that evidence “from whatever source,” including impeachment evidence elicited on cross

- examination, can be presented to affirmatively establish the party’s theory on a lesser included or inferior degree offense. 197 Wn.2d at 415

. And here, there was affirmative evidence offered in the form of direct testimony that supported the fourthNo. 574 86

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degree assault instruction, including testimony that Fuller pushed or shoved MH to the ground and
she landed hard on her back. Moreover, like in Co ryell, here there was evidence that tend ed to raise reasonable doubt
about the charged higher degree offense

. And similar to the police officer’s testimony about the
lack of petechial hemorrhaging , in this case , there was also no evidence of petechia e and the police
officer testified he did not recall a smell of urine or defecation

. Id. at 403

. T he jury heard that MH had ongoing health problems, which the jury could infer caused her shortness of breath. Like in Coryell , this testimony could cast doubt on wh ether the defendant strangled the victim

. Id. at 419. As explained above, Fuller’s own admission that he pushed MH and her testimony that he pushed her to the ground and that she landed hard on her back , could lead a reasonable ju ry to
b elieve that some level of assault short of strangulation did occur
. In Coryell , the court concluded that, because the evidence in the record supported an inference that Coryell assaulted the victim, but did not strangle her, the instruction for fourth degree assault w as warranted. Id. at 41 8

- 19. We
should reach the same conclusion here. Therefore, w e hold that the trial court did not abuse its discretion in finding that the
evidence submitted supported a reasonable inference that Fuller assaulted but did not strangle the victim, and thus, the fourth degree assault instruction was warranted

. CONCLUSION
W e affirm Fuller’s conviction.No. 574 86

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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.

Glasgow, C.J. We concur:

Cruser, J.

Che, J.