FILED 


NOV. 26, 2013 


In the Office of the Clerk ofCourt 


W A State Court of Appeals, Division III 


IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 


DIVISION THREE 


STATE OF WASHINGTON, ) No. 30879-1-111 

) 

Respondent, ) 

) 

v. ) 

) 

FLOYD KOONTZ, ) UNPUBLISHED OPINION 

) 

Appellant. ) 

BROWN, J. - Floyd Koontz appeals his first degree manslaughter conviction 

following a bench trial. He contends the court erred in finding he was the first aggressor 

and argues insufficient evidence supports his conviction. In his statement of additional 

grounds for review (SAG), Mr. Koontz, pro se, reiterates his appellate counsel's first 

aggressor concerns and additionally urges us to reassess witness credibility. We find 

no error, and affirm. 

FACTS 

Mr. Koontz purchased a vehicle from Pete Flores for $500. Mr. Koontz gave him 

$250 and agreed to pay the remaining $250 at a later time. 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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State v. Koontz 

embarrassed Mr. Koontz. Witnesses heard the two men arguing about the vehicle. 

And, one witness thought she heard Mr. Koontz threaten that he was "gonna get a 

knife." RP at 560. Mr. Flores ended up kicking Mr. Koontz out and telling him not to 

come back unless Mr. Koontz had the money to pay the balance on the vehicle. 

About three months later, Mr. Koontz was at a friend's house where a witness 

saw him using a pocket knife to cut and eat sausage. A friend at the house had recently 

talked to Mr. Flores, who asked her to remind Mr. Koontz he still owed him money. Mr. 

Koontz became upset about this and left. According to the witness, Mr. Koontz stated 

on his way out that "he was gonna go kill Pete." RP at 147. 

Mr. Koontz then went to Mr. Flores's house. A friend of Mr. Flores was inside 

using the bathroom. When he came outside, the friend saw Mr. Koontz pulling a knife 

out of Mr. Flores's neck. The friend did not hear any loud noises coming from outside. 

Mr. Flores died a short time later. An investigating officer went to Mr. Koontz's home to 

investigate the homicide. He saw Mr. Koontz had been stabbed and called for an 

ambulance. Mr. Koontz had a puncture wound in his chest, along with superficial cuts 

or stab 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 further testified that as he tried to pull his knife out of his 

pocket he tripped and fell, and Mr. Flores fell on top of him. He then stabbed Mr. Flores 

and ran away. 

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No. 30879-1-111 

State v. Koontz 

The trial court concluded Mr. Koontz was the aggressor and rejected his selfdefense argument. The court then found him guilty of first degree manslaughter while 

armed with a deadly weapon. Mr. Koontz appealed. 

ANALYSIS 

A. First Aggressor 

The issue is whether the trial court erred in concluding Mr. Koontz was the first 

aggressor, and rejecting his self-defense claim. Mr. Koontz argues no evidence shows 

he provoked the fight that resulted in Mr. Flores's death. We review conclusions of law 

de novo. In re Pers. Restraint of Brett, 142 Wn.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 belief that 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 

of self defense, the State may produce "credible evidence" showing the defendant was 

the aggressor. State v. Riley, 137 Wn.2d 904, 909, 976 P.2d 624 (1999). 

At the outset we note, because this case was decided in a bench trial, the trial 

judge had the fact-finding discretion to resolve witness credibility and evidence weight 

problems without the necessity of giving jury instructions. The judge is presumed to 

know the law. The judge's oral decision indicates a careful consideration of the case 

facts as applied to the law of self-defense. The judge carefully explained his reasoning 

regarding the credibility issues and indicated his views on the persuasiveness of the 

evidence. These are areas that we must defer to because substantial evidence in the 

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State v. Koontz 

record supports the trial court's findings of fact and those facts support its conclusions 

of law. The judge's rejection of self defense because he found Mr. Koontz was 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) the jury can 

reasonably determine from the evidence that the defendant provoked the fight; (2) the 

evidence conflicts as to whether the defendant's conduct provoked the fight; or (3) the 

evidence shows that the defendant made the first move by drawing a weapon." State v. 

Anderson, 144 Wn. App. 85, 89, 180 P.3d 885 (2008) (citing Riley, 137 Wn.2d at 909­

10). 

In Riley, Mr. Riley referred to a rival gang member as a "wanna-be." 137 Wn.2d 

at 906. The victim then threatened 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. The jury found Mr. Riley guilty of first 

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 a jury could reasonably determine that the 

defendant provoked the need to act in self defense, an aggressor instruction is 

appropriate. Id. at 910. f 

In other words, a defendant whose aggression provokes the contact eliminates 

his right of self-defense. State v. Douglas, 128 Wn. App. 555, 562, 116 P.3d 1012 

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State v. Koontz 

(2005). Here, the trial court acted within its fact-finding discretion in deciding the 

underlying facts in support of its legal conclusions. 

Mr. Koontz and Mr. Flores had a previous encounter where they argued over the 

vehicle that Mr. Flores sold to Mr. Koontz. Mr. Flores displayed a knife and told Mr. 

Koontz to leave his home and never come back. Nevertheless, upon learning from 

mutual friends that Mr. Flores still wanted his money for the vehicle, Mr. Koontz went 

back. This time 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. While the witness at Mr. Flores's home did not hear a struggle and Mr. Koontz 

also had been wounded, Mr. Koontz's actions would still constitute aggression sufficient 

to eliminate his right to claim self-defense. Doug/as, 128 Wn. App. at 562. Moreover, a 

fact-finder could "reasonably determine ... that the defendant provoked the fight" based 

on Mr. Koontz's actions. Anderson, 144 Wn. 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 whether sufficient 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, after viewing the evidence in the light most favorable 

to the State, any rational trier of fact could have found guilt beyond a reasonable doubt. 

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No. 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 of the evidence, all reasonable inferences must be drawn in favor of the 

State and interpreted most strongly against the defendant. State v. Salinas, 119 Wn.2d 

192,201,829 P.2d 1068 (1992). 

A person commits first degree manslaughter when he or she "recklessly causes 

the death of another person." RCW 9A.32.060(1 )(a). "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." RCW 

9A.08.010(1)(c). Our Supreme Court clarified in State v. Gamble, 154 Wn.2d 457, 467­

68, 114 P.3d 646 (2005) that to convict a defendant of first degree manslaughter the 

State must prove beyond a reasonable doubt that the 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 of his house and telling him to never come back. Mr. Koontz then heard 

from a mutual friend that Mr. Flores wanted to be paid for the vehicle. Mr. Koontz 

appeared agitated and left the house of the mutual friend, claiming he was going to kill 

Mr. Flores. He was carrying a knife at the time. Based on these facts, and drawing all 

reasonable inferences in favor of the State, a reasonable person could conclude Mr. 

Koontz knew of, and disregarded, a substantial risk that death may occur. Mr. Koontz 

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No. 30879-1-111 

State v. Koontz 

acted recklessly. Thus, sufficient evidence exists to support his first degree 

manslaughter conviction. 

C. Statement of Additional Grounds 

In his SAG, Mr. Koontz dedicates several pages to citing to the trial transcript and 

then providing commentary about the testimony. It appears from these comments he is 

challenging the trial court's finding that he was the first aggressor and disagrees with 

the trial court's witness credibility determinations. 

We do not readdress Floyd Koontz's first-qggressor concerns because his 

appellate counsel's brief adequately addressed that issue, rejected above. See RAP 

10.10(a) (providing the purpose of a SAG is to "identify and discuss those matters which 

the defendant/appellant believes have not been adequately addressed by the brief filed 

by the defendant/appellant's counsel"). 

Mr. Koontz is concerned that several of the 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 defer to the trier of fact on 

issues of conflicting testimony, witness credibility, and the persuasiveness of the 

evidence. State v. Camarillo, 115 Wn.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. 

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No. 30879-1-111 

Statev. Koontz 

Affirmed. 

A majority of the 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. 

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