### FILED NOV. 26, 2013 In theOffice oftheClerkofCourt W A StateCourtofAppeals, Division III

IN THE COURT OFAPPEALS OF THE STATE OFWASHINGTON DIVISION THREE STATE OFWASHINGTON, ) No. 30879-1-111 ) Respondent, ) ) v. ) 

### ) FLOYD KOONTZ, ) UNPUBLISHED OPINION 

### ) Appellant. 

### ) BROWN, 

### J.

- Floyd Koontz appeals hisfirst degree manslaughterconviction following a bench trial. He contends the court erred in finding hewasthefirst aggressor and argues insufficient evidence supports his conviction. In his statement ofadditional groundsfor review (SAG), Mr. Koontz, pro se, reiterates his appellate counsel's first aggressorconcerns and additionally urges usto reassess witness credibility. Wefind
no error, and affirm. FACTS Mr. Koontz purchased a vehiclefrom Pete Floresfor $500. Mr. Koontz gave him $250 and agreed to pay the remaining $250 at a latertime. Mr. Koontz was not happy with the car and felt Mr. Flores had sold him a "lemon." Report of Proceedings (RP) at 291. Mr. Koontz confronted Mr. Flores, who allegedly pulled out a knife and 

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### , , i

### No. 30879-1-111 State v. Koontz
embarrassed Mr. Koontz. Witnesses heard the two men arguing aboutthe vehicle. And, onewitness thought she heard Mr. Koontz threaten that he was "gonna geta knife." RP at560. Mr. Flores ended up kicking Mr. Koontz out and telling him notto
come back unless Mr. Koontz had the money to pay the balance on the vehicle. Aboutthree months later, Mr. Koontzwas at a friend's house where a witness
saw him using a pocket knife to cut and eat sausage. A friend atthe house had recently talked to Mr. Flores, who asked herto remind Mr. Koontz he still owed him money. Mr. Koontz became upset aboutthis and left. According to thewitness, Mr. Koontz stated
on hisway outthat "he was gonna go kill Pete." RP at 

### 147. Mr. Koontz then wentto Mr. Flores's house. A friend of Mr. Flores was inside using the bathroom. When he came outside, thefriend saw Mr. Koontz pulling a knife out of Mr. Flores's neck. The friend did not hearany loud noises coming from outside. Mr. Flores died a shorttime later. An investigating officerwentto Mr. Koontz's hometo investigate the homicide. He saw Mr. Koontz had been stabbed and called for an ambulance. Mr. Koontz had a puncturewound in his chest, along with superficial cuts
orstab wounds, and some bleeding. The State charged Mr. Koontz with first degree murder. During his bench trial, Mr. Koontz testified Mr. Flores threatened him and then attacked him with a file and a butcher knife. Mr. Koontz furthertestified thatas he tried to pull his knife outof his pocket he tripped and fell, and Mr. Floresfell on top of him. He then stabbed Mr. Flores and ran away.

2No. 30879-1-111 State v. Koontz
The trial court concluded Mr. Koontz was the aggressorand rejected his selfdefense argument. The courtthen found him guilty offirst degree manslaughterwhile armed with a deadlyweapon. Mr. Koontz appealed. ANALYSIS A. First Aggressor The issue is whetherthetrial court erred in concluding Mr. Koontz was the first aggressor, and rejecting his self-defense claim. Mr. Koontz argues no evidence shows he provoked thefight that resulted in Mr. Flores's death. We review conclusions of law de novo. In re Pers. RestraintofBrett, 142Wn.2d 868,873-74, 16 P.3d 601 (2001). In Washington, a defendant's right to act in self-defense is determined from the defendant's subjective, reasonable beliefthat he or she is in imminent harm. State v. Bradley, 141 Wn.2d 731, 737,10 P.3d 358 (2000). But, to disavow a defendant's claim ofselfdefense, the State may produce "credible evidence" showing the defendantwas the aggressor. State v. Riley, 137Wn.2d 904, 909, 976 P.2d 624 (1999). Atthe outsetwe note, becausethis case was decided in a bench trial, the trial judge had the fact-finding discretion to resolve witness credibility and evidenceweight problems withoutthe necessity ofgiving jury instructions. Thejudge is presumed to knowthe law. Thejudge's oral decision indicates a careful consideration ofthe case facts as applied to the lawofself-defense. Thejudge carefully explained his reasoning regarding the credibility issues and indicated his views on the persuasiveness ofthe evidence. These are areas that we must deferto because substantial evidence in the



### 3No. 30879-1-111 State v. Koontz
record supports the trial court's findings offact and those facts support its conclusions of law. Thejudge's rejection ofself defense because he found Mr. Koontzwas the aggressor is wholly supported by this record. In any event, case law concerning when an aggressor instruction is justified is instructive. "A court properly submits an aggressor instruction where (1) thejury can reasonably determine from the evidencethatthe defendant provoked the fight; (2) the evidence conflicts as to whetherthe defendant's conduct provoked the fight; or (3) the evidence shows thatthe defendant madethefirst move by drawing a weapon." State v. Anderson, 144Wn. App. 85, 89, 180 P.3d 885 (2008) (citing Riley, 137Wn.2d at 909­ 10). In Riley, Mr. Riley referred to a rival gang memberas a "wanna-be." 137Wn.2d at 906. The victim thenthreatened to shoot Mr. Riley. Mr. Riley pulled a gun on the victim and demanded his gun. As the victim reached for his gun, Mr. Riley shot him. The court instructed on first aggressor. Id. at 907. Thejury found Mr. Riley guilty offirst degree assault. He appealed his conviction, arguing the trial court erred in giving an aggressor instruction. The court rejected Mr. Riley's challenge, holding generally where credible evidence exists from which ajury could reasonably determine thatthe defendant provoked the need to act in selfdefense, an aggressor instruction is appropriate. Id. at 910. 

# f In other words, a defendantwhose aggression provokes the contact eliminates his right ofself-defense. State v. Douglas, 128 Wn. App. 555, 562, 116 P.3d 1012



### 4 

# INo. 30879-1-111 State v. Koontz (2005). Here, the trial court acted within its fact-finding discretion in deciding the underlying facts in support ofits legal conclusions. Mr. Koontz and Mr. Flores had a previous encounterwhere they argued overthe vehicle that Mr. Flores sold to Mr. Koontz. Mr. Flores displayed a knife and told Mr. Koontz to leave his home and nevercome back. Nevertheless, upon learning from mutual friends that Mr. Flores still wanted his moneyforthe vehicle, Mr. Koontz went back. Thistime he was carrying a knife (previously displayed while he was eating sausage) and visibly upset. Mr. Koontz also stated he was going to "kill Pete." RP at 147. Whilethewitness at Mr. Flores's home did not hear a struggle and Mr. Koontz also had been wounded, Mr. Koontz's actionswould still constitute aggression sufficient to eliminate his right to claim self-defense. Doug/as, 128Wn. App. at 562. Moreover, a fact-finder could "reasonably determine

...thatthe defendant provoked the fight" based
on Mr. Koontz's actions. Anderson, 144Wn. App. at 89 (citing Riley, 137 Wn.2d at 909­ 10). The trial court properly concluded likewise in denying Mr. Koontz's self-defense claim. B. Evidence sufficiency The issue is whethersufficient evidence exists to support Mr. Koontz's first degree manslaughter conviction. He contends the State failed to prove he acted recklessly. Evidence is sufficient when, afterviewing the evidence in the light mostfavorable tothe State, any rational trier offact could have found guilt beyond a reasonable doubt.


### 5No. 30879-1-111 State v. Koontz
State v. Green, 94 Wn.2d 216, 221,616 P.2d 628 (1980) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 

### L. Ed. 2d 560 (1979». When considering the sufficiency ofthe evidence, all reasonable inferences must be drawn in favor ofthe State and interpreted most strongly againstthe defendant. State v. Salinas, 119Wn.2d 192,201,829 P.2d 1068 (1992). A person commits first degree manslaughterwhen he or she "recklessly causes the death ofanother person." RCW9A.32.060(1)(a). "A person is reckless or acts recklessly when he orshe knows ofand disregards a substantial risk that a wrongful act may occur and his or herdisregard ofsuch substantial risk is a gross deviation from conduct that a reasonable person would exercise in the same situation." RCW 9A.08.010(1)(c). OurSupreme Court clarified in State v. Gamble, 154Wn.2d 457, 467­ 68, 114 P.3d 646 (2005) thatto convict a defendant offirst degree manslaughterthe State must prove beyond a reasonable doubtthatthe defendant knew of, and disregarded, a substantial risk that death may occur. Mr. Koontz and Mr. Flores had a prior confrontation resulting in Mr. Flores kicking Mr. Koontz out ofhis house and telling him to nevercome back. Mr. Koontz then heard from a mutual friend that Mr. Flores wanted to be paid forthe vehicle. Mr. Koontz appeared agitated and left the house ofthe mutual friend, claiming he was going to kill Mr. Flores. Hewas carrying a knife atthe time. Based on thesefacts, and drawing all reasonable inferences in favor ofthe State, a reasonable person could conclude Mr. Koontz knew of, and disregarded, a substantial risk that death may occur. Mr. Koontz



### 6No. 30879-1-111 State v. Koontz
acted recklessly. Thus, sufficient evidence exists to support his first degree manslaughter conviction. C. Statement ofAdditional Grounds In his SAG, Mr. Koontz dedicates several pages to citing to the trial transcript and then providing commentary aboutthe testimony. It appears from these comments he is challenging the trial court's finding that he was the first aggressor and disagrees with thetrial court's witness credibility determinations. We do not readdress Floyd Koontz's first-qggressor concerns because his appellate counsel's briefadequately addressed that issue, rejected above. See RAP 10.10(a) (providing the purpose ofa SAG is to "identify and discuss those matters which the defendant/appellant believes have not been adequately addressed by the brieffiled bythe defendant/appellant's counsel"). Mr. Koontz is concerned that several ofthe witnesses committed perjury and disagrees with the trial court's credibility assessments. Mr. Koontz, however, testified at trial (RP 647), rebutting the testimony he now questions. We deferto the trieroffact on issues ofconflicting testimony, witness credibility, and the persuasiveness ofthe evidence. State v. Camarillo, 115Wn.2d 60,71,794 P.2d 850 (1990). Moreover, both circumstantial and direct evidence are equally reliable. State v. De/marler, 94 Wn.2d 634,638,618 P.2d 99 (1980). Accordingly, Mr. Koontz fails to present any reversible
error.



### 7No. 30879-1-111 

### Statev. Koontz
Affirmed. A majority ofthe panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040. Brown, 

### J. WE CONCUR:

Kulik, 

### J.

8