### FILED June 9, 2016 In the Office ofthe Clerk ofCourt WA StateCourt ofAppeals, Division III


### IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE STATE OF WASHINGTON, Respondent,


### v. LISAELAINE THYSELL, Appellant. ) ) ) ) ) ) ) ) ) No. 33028-1-III



### PUBLISHED OPINION

LAWRENCE-BERREY,

### J.
- Some cases statethe defendantmustproduce evidence ofself-defensetobe entitledto a self-defense instruction. Atissue here is whether a defendant is entitledto a self-defense instruction when onlythe Stateproduces evidence ofself-defense. We take this opportunity toclarify the law. Weholdthat a defendant is entitled to ajury instruction on self-defense when, considering 

### allofthe evidence, the jury couldhave a reasonable doubt as to whetherthe defendant acted in self-defense. Here, the trial courtrefusedto give the requested instructionbecause only the State presented evidence ofself-defense. We concludethe trial court erred, andreverse and remand for a new trial.No. 33028-1-111 

### State v. 

### Thysell
I. SELF-DEFENSE EVIDENCE Our review ofthe issue requires us to examine the evidence thatMs. Thysell claims entitles herto a self-defense instruction. We begin byreviewingDeputy Ross Guiney's trial testimony. He testifiedto the following on direct: Ms. Thysell called 911 and reported that her daughter, Ashley Calkins, bit offher finger during a fight between the two ofthem. Dispatch called Deputy Guiney, andhe reported to the address provided. He metMs. Thysell in a field nearthe address. Ms. Thysell had whatwas left ofher finger wrapped in a towel. Deputy Guiney asked ifshe

· needed medical aid. She declined. Butbecause ofthe amount ofbleeding, he called for

an ambulance anyway. While waiting for the ambulance, Deputy Guiney askedMs. Thysell what happened. Ms. Thysell said she believed her daughter had stolen from her so she wanted to confronther. Ms. Thysell said she went to her daughter's trailer, knocked, and when nobody answered, she threatenedto break a window. Ms. Thysell said her daughter then openedthe door, they fought inthe doorway, and she eventually entered the trailer and looked for the item but did not find it.

2No. 33028-1-III 

### State v. Thysell Deputy Guiney then asked Ms. Thysell ifshe would give a recorded statement. She said she would. Still testifying on direct, Deputy Guiney related the recorded statement to thejury: [S]he said that a firearm was stolen from herproperty and she thought her daughter had done it because her daughterhad stolen from herbefore. So she went outto a trailer that her daughter was staying in
.... [When Ms. Thysell] went out there, she knocked onthe door, she knew her daughter Ashley was inside. When nobody would answer she said she threatenedto break a windowjustto getherto cometo the door. She said [she] wasn'treally going to break the window, [she]justwas trying to getherto come to the door
.... She said
... her daughter finally opened the door, when she did
... she tried to walk in but her daughterpushed her downthe stairs, that's where the altercation happened because [Ms. Thysell] said she did not want to fall offthe stairs so she grabbed a hold of [her daughter] and was trying to hold on and that's when [her daughter] was biting her, bither in the arm

... and then bither finger. And then they exchanged a couple ofhits, blows, fists
.... Andthen [Ms. Thysell] said [her daughter] kind ofgave up and she
·went into the trailerto look for the firearm, could not find the firearm and then left and went into the field and called 9-1-1. Report ofProceedings (RP) (Dec. 3, 2014) at 13-14. Ms. Calkins testified at trial and refuted hermother's statementto Deputy Guiney. Ms. Calkins testified she would not let her mother in hertrailer, and in response, her mother grabbed her, wrestled her down onto the ground, andbeatherwith herhands and
a rock. Ms. Calkins testified that she bither mother's finger during the fight. Deputy Guiney described Ms. Calkins' wounds as scratches that did not bleed. 3No. 33028-1-III 

### State v. Thysell
Ms. Thysell requested ajury instruction on self-defense. The State argued such an instruction was not appropriate because

### Ms. Thysell failed to present evidence ofselfdefense. And because the only evidence that arguably would support the instruction came through the State's witness on direct, Ms. Thysell was not entitledto herrequested instruction. The trial court agreed with the State's argument and refused to instructthe jury on self-defense. Thejury found Ms. Thysell not guilty on the more serious charge offirst degree burglary, but found her guilty onthe charge offourth degree assault, domestic violence. Ms. Thysell appeals. II. ANALYSIS Ms. Thysell argues the trial court erred by refusing herrequested self-defense instruction. The parties agree the trial court refused Ms. Thysell's instruction because Ms. Thysell failed to produce the evidence on which her instruction was based. Ms. Thysell argues it is irrelevant who produces the evidence, so long as there is sufficient evidence in the record to warrant a self-defense instruction. Our standard ofreview for a trial court's refusal to instruct on self-defense depends on whether the refusal was based on fact or on law. 

### State v. George, 161 Wn. App. 86, 94,249 P.3d 202 (2011) (citing 

### State v. Walker, 136 Wn.2d 767, 771-72, 966
4

### No. 33028-1-III State v. 

### Thysell
P.2d 883 (1998)). Here, the trial court ruled as a matter oflaw that Ms. Thysell was not entitled to ajury instruction on self-defense unless she produced the evidence on which such an instruction would be warranted. Our review therefore is de novo. The State argues a self-defense instruction is warranted only ifthe defendant produces the evidence on which the instruction is based. The State cites State v. Janes, 121 Wn.2d 220,237,850 P.2d 495 (1993), State v. Walden, 131 Wn.2d 469, 473-74, 932 P.2d 1237 (1997), and State v. McCreven, 170 Wn. App. 444,462, 284 P.3d 793 (2012). McCreven quotes Walden, which ascribes the following rule to Janes: "Tobe entitled to ajury instruction on self-defense, the defendant must produce some evidence demonstrating self-defense; however, once the defendant produces some evidence, the burden shifts to the prosecution to prove the absence ofself-defense beyond a reasonable doubt." McCreven, 170 Wn. App. at 462 (quoting Walden, 131 Wn.2d at 473-74) (citing Janes, 121 Wn.2d at 237). A review ofthe arguments and issues raised in these decisions verifies the decisions were explaining burden shifting, and keeping the burden ofproof always on the State. The decisions were not intentionally announcing a new rule that a defendant no longer was entitled to the benefit ofthe evidence produced by the State. None ofthose courts addressed the argument that the State makes here-thatthe trial court must ignore evidence produced by the State that would warrant a self-defense instruction. 

### 5

### No. 33028-1-III State v. Thysell


### No decision in this state has ever directly held that a trial court or a trier offact must consider only the evidence produced by one party when deciding ifa claim or defense has been proved. Such a rule would conflict with 11 Washington Practice: Washington Pattern JuryInstructions: Criminal 

### 1.02, at 13 (3d ed. 2008), a general instruction given in this and every criminal case. The instruction states in relevantpart: "Eachparty is entitled to the benefit ofall ofthe evidence, whether or not that party introduced it." Clerk's Papers at 16. To the extent that language inJanes, McCreven 

### and Walden 

### can be construed otherwise, we believe the language was unintentional. We hold that a defendant is entitled to a self-defense instruction when, considering all 

### ofthe evidence, thejury could have a reasonable doubt as to whether the defendant acted in self-defense. Considering all the evidence in this case, ajury could have reasonable doubt who started the fight and whether Ms. Thysell's actions were in lawful self-defense. Ms. Thysell, through Deputy Guiney, said her daughter pushed her down the stairs. According to Ms. Thysell, she grabbed her daughter to keep from falling, and it was at this time when her daughter began biting her. This biting precipitated the fight where Ms. Thysell's wounds were significantly greater than her daughter's. We hold the trial court erred by refusing to give Ms. Thysell's proposed self-defense instruction.
6No. 33028-1-III State 

### v. Thysell
Reversed.

WE CONCUR:

# ~~ Pennell, 

### J. 

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### J. {\ 

## j

7