IN THE COURT OFAPPEALS OF THE STATE OF WASHINGTON

STATE OFWASHINGTON, No. 78774-8-I

Respondent, DIVISION ONE V. JON GARY NEREIM, UNPUBLISHED OPINION

Appellant. FILED: January 21, 2020
SMITH, J.

—Jon Nereim appeals hisjury conviction forthird degree assault. He contends that defense counsel’s failure to propose a self-defense instruction forthat charge deprived him of his constitutional right to effective assistance ofcounsel. The State concedes that defense counsel’s performance in this regard was deficient. Because we conclude that Nereim was prejudiced bythis deficient performance, we reverse. FACTS On October7, 2017, Nisreen Judeh and her 14-year-old son Hamza drove to a 7-11 convenience store located a few blocks from their house in Seattle.1 Nisreen is a practicing Muslim and wears a head scarfas part of her religious observances. Hamzawaited in the carwhile his motherwent inside.

1 Because several members ofthe Judeh familywere involved in the incident, we referto them bytheirfirst nameforthe sake ofclarity. No disrespect is intended.No. 78774-8-1/2

Atthe 7-1 1, Nisreen encountered herfriend Daryll Bennett and they started talking. Bennett is African-American and uses a wheelchair. Around that time, Nereim entered the 7-11 to purchase food before catching a bus to the shelterwhere he was staying. Bennetttestified that Nereim looked atthem and said he “don’t like blacks and don’t like Muslims.” Bennett and Nisreen tried to ignore Nereim, but he kept repeating himself. They decided to leave the store and continue theirdiscussion outside. Nisreen testified that as Nereim exited the store and walked pastthem, she heard him use “the N word” and say, “Terrorist Muslim, you should go backto where you came from.” Nisreen attempted to end the confrontation bywaving at Nereim and saying, “Have a good day.” Nereim continued to swear atthem, then walked to a bus stop across the street. Nisreen and Hamza got into their car and started to drive away. As Nisreen and Hamza drove pastthe bus stop, Nereim began shouting and making insulting gestures toward them, including raising his middle finger and showing the sole of his foot.2 Nisreen made a U-turn and pulled up to the bus stop. She testified thatshe “justwanted to talkto him, see what’s going on, why is he doing this, maybe I can talkto him peacefully.” Hamza called his older brotherTariq to tell him that “someonewas getting aggressive with my mom.” While Nisreen was still in the car, Nereim continued cursing and calling her “the N word.” Nisreen whistled to Bennett and asked him to come over. Bennett, accompanied by his friend Abdoulie Corr, wentto help Nisreen. Corr is

2 Nisreen and her husband, Ibraheem, testified that Muslims considerthis gesture extremely insulting. 2No. 78774-8-1/3

disabled and, like Bennett, uses a wheelchair. Corrdid not know Nereim orthe Judeh family priorto this incident. He advised Nereim to “just let it go.” Nisreen exited the car and asked Nereim “[wjhy are you doing this? Do you know me?” Nereim appeared “very upset” and continued to curse. Hamza heard Nereim say “terrorist and dirty Muslim, go back home” to Nisreen. Around this time, Nisreen’s olderson Tariq arrived and stood in front of Nisreen to protect her. Nereim began walking away from the bus stop. Tariq testified that he “didn’twant him to get awaywith what he did” so he approached Nereim to askwhat had happened. Nereim told Tariq that Nisreen had “called [him] names.” Tariq then asked Nisreen what happened, and she said Nereim had yelled racial slurs at her. Nereim then drew a can of peppersprayfrom his pocket, took a fewsteps forward, and discharged the canistertwice. The pepper spray struck Nisreen, Tariq, and Corr, causing intense pain. Nereim tried to board a Metro bus, but Tariq told the driverthat Nereim had attacked them. The bus departed without letting him on. Around thattime, Ibraheem and son Bilal arrived atthe scene. Ibraheem testified that he asked Nereim what happened, and Nereim responded, “those Muslims and that N word attacked [me].” When Ibraheem informed Nereim that Nisreen is his wife, he saw Nereim raise his right arm as if preparing to pepper spray him. Ibraheem tackled Nereim to the ground, and Tariq tookthe pepper spray out of his hand. Police officers arrived, detained Nereim, and recovered a concealed firearm from his person.

3No. 78774-8-1/4 Nereim testified to a differentversion ofevents. He stated that hewas purchasing food atthe 7-1 1 when Nisreen, without provocation, called him a “coward” and said, “I hope thatyou die.” Nereim said he leftthe store without responding in anyway. As Nereim sat atthe bus stop eating his food, he saw Nisreen in her cargetting readyto leave. He felt insulted by her comments in the store, so he decided to insult her back by shouting profanities and showing the sole of his foot. According to Nereim, Nisreen pulled up in her carand called him “a piece ofshit,” a “coward,” and “whitetrash.” She then got out ofthe carand stepped within a few inches of Nereim while angrily repeating, “You don’t know me.” Nereim stepped back and asked Nisreen to “just go away,” but Nisreen clenched herfists and lunged at him. Tariq showed up and accused Nereim of hitting Nisreen. Then Tariq got “into

. . . a fighting stance” and reached inside his pants as he and Nisreen advanced toward him. Nereim, believing he was under attack, discharged two bursts of pepperspray at Nisreen and Tariq “to stop their aggression towards me.” Nereim acknowledged that Corrwas struck by “overspray” but claimed this was unintentional. The State charged Nereim by amended information with one count of malicious harassment of Nisreen, one countof malicious harassment ofTariq, and one count ofassault in the third degree of Corr underthe “criminal negligence” prong ofthe statute. While discussingjury instructions, the trial court stated that “self-defense only pertains to the malicious harassment, notthe assault, because itwas essentially unintended collateral consequences, although that’s why it’s charged as assaultthree and not assaulttwo.” Defense counsel

4No. 78774-8-1/5

appeared to agree, stating that “I think in myjury instructions I did put—it’s—in defense of malicious harassment.” The court’s instructions to thejury specified that Nereim’s self-defense claim applied to the malicious harassment charges, butthe instructions pertaining to the third degree assault charge did not reference self-defense. During deliberations, thejury submitted two inquiries to the trial court. The first asked: Regarding count 1[,J ([Instruction] No. 17), element 3, does the act ofdischarging the pepperspray have to be motivated bythe defendant’s perception ofthe other person’s race, religion, or national origin, in orderto fulfill this element, or is the element fulfilled by acts thatwere racially, religious, ororigin-related at any time during the entire incident[?][3] The court responded, “Please re-read Instruction No. 6,” which defines malicious harassment. The second jury inquirystated: We are deadlocked on count one and two. We have a unanimous decision on countthree. How should we proceed? The court instructed thejuryto keep deliberating. Afterthejury resubmitted the second inquiry, the court declared a mistrial as to the two malicious harassment counts and accepted thejury’s verdict ofguilty on the third degree assault count. The court imposed a standard range sentence ofthree months ofconfinement. Nereim appeals.

~ Element 3 of instruction 17 provides “[t]hatthe defendant acted because of his perception ofthe race religion national origin of Nisreen Judeh.” 5No. 78774-8-116

ANALYSIS IneffectiveAssistance of Counsel Nereim argues that his trial counsel provided ~ineffective assistance by failing to requestthatthe self-defense instruction applyto all three charges. The Sixth Amendmentto the United States Constitution and article I, section 22 ofthe Washington State Constitution guarantee the rightto effective assistance of counsel. In re Pers. Restraintof Brett, 142 Wn.2d 868, 873, 16 P.3d 601 (2001). To prevail on a claim of ineffective assistance, a defendant must establish that (1) his attorney’s performance was deficient and (2) the deficiency prejudiced him. State v. Kyllo, 166 Wn.2d 856, 862, 215 P.3d 177 (2009). The State concedesthat Nereim’s trial counsel was deficientforfailing to propose a self-defense instruction forthe third degree assault charge. We acceptthe State’s concession. To establish that counsel’s performance was deficient, Nereim must prove that “counsel’s performance fell below an objective standard of reasonableness in light ofall the circumstances.” In re Pers. Restraint of Lui, 188 Wn.2d 525, 538, 397 P.3d 90 (2017). “The threshold forthe deficient performance prong is high, given the deference afforded to decisions ofdefense counsel in the course of representation.” State v. Grier, 171 Wn.2d 17, 33, 246 P.3d 1260 (2011). “When counsel’s conduct can be characterized as legitimate trial strategy or tactics, performance is not deficient.” Kyllo, 166 Wn.2d at 863.

6No. 78774-8-117 “Where self-defense negates an essential element ofa crime, the State must prove the absence ofself-defense beyond a reasonable doubt, ifthe evidence supportsthe giving ofsuch an instruction.” State v. Dyson, 90 Wn. App. 433, 437, 952 P.2d 1097 (1997) (footnote omitted). Nereim was charged with malicious harassment of Nisreen and Tariq pursuantto former RCW 9A.36.08 (2010): (1) A person is guilty of malicious harassment if he orshe maliciously and intentionally commits one ofthe following acts because of his or her perception ofthe victim’s race, color, religion, ancestry, national origin, gender, sexual orientation, or mental, physical, orsensory handicap: (a) Causes physical injuryto the victim or another person; (b) Causes physical damage to ordestruction ofthe property ofthe victim or another person; or (c) Threatens a specific person orgroup of persons and places that person

. . . in reasonable fear of harm to person or property. Nereim was also charged with third degree assault of Corr pursuantto RCW 9A.36.031: (1) A person is guilty ofassault in the third degree if he orshe. (d) [w]ith criminal negligence, causes bodily harm to another person by means ofa weapon orother instrument orthing likelyto produce bodily harm. A person is criminally negligent “when he orshe fails to be aware ofa substantial riskthat a wrongful act may occurand his or herfailure to be aware ofsuch substantial risk constitutes a gross deviation from the standard ofcare that a reasonable person would exercise in the same situation.” RCW 9A.08.010(1)(d). The use offorce is lawful when used in self-defense. RCW 9A.16.020(3).

7No. 78774-8-1/8 Here, it appears thatthe trial court and defense counsel were underthe impression that a self-defense instruction was not available forthe third degree assault charge because itwas charged underthe negligence prong ofthe statute. This was incorrect. “[A] self-defense instruction is necessary, when supported bythe evidence, in a third degree assault case.” Dyson, 90 Wn. App. at438. In so holding, the Dyson court reasoned that “[e]xplicit evidence that a defendant intended to assault a victim is not necessary.

. . . What is necessary is evidence thatthe action that caused the victim’s injurywas not accidental, but rather made in orderto protectthe defendant.” Dyson, 90 Wn. App. at 434. Such evidence is present in this case. Nereim did not deny pepper spraying Nisreen and Tariq but claimed he did so in self-defense. He also acknowledged that some ofthe spray hit Corr but asserted thatthis was unintentional. Underthese circumstances, there was no legitimate strategic or tactical reason fordefense counsel to request a self-defense instruction forthe malicious harassment charges but notthe assault charge. We acceptthe State’s concession that counsel’s performance was deficient. The next issue is whether Nereim was prejudiced by his counsel’s deficient performance. A defendant shows prejudice where “there is a reasonable probabilitythat, exceptfor counsel’s unprofessional errors, the result ofthe proceeding would have been different.” State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995). A reasonable probability is “a probability ~sufficientto undermine confidence in the outcome.” Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). “The likelihood ofa

8No. 78774-8-1/9

different result must be substantial, notjust conceivable.” Harrinqton v. Richter, 562 U.S. 86, 112, 131 S. Ct. 770, 178 L. Ed. 2d 624 (2011). Here, the evidence established that Nereim had no lawful basis to defend himselfdirectly against Corr, who was unarmed, in a wheelchair, and exhibited
no threatening behavior. And Nereim testified that he did not intend to pepper, spray Corr. Thus, Nereim’s abilityto assert self-defense againstthe assault of Corrflowed entirelyfrom his abilityto assert self-defense againstthe malicious harassment of Nisreen and Tariq. Thejury hung on the two malicious harassment charges forwhich a selfdefense instruction was given, but convicted Nereim on the third degree assault charge forwhich that instruction was not given. Thejury’s firstwritten inquiry suggests that at least onejurorwas not convinced that Nereim peppersprayed Nisreen and Tariq based on his perception oftheir race, religion, or national origin. Given Nereim’s testimonythat he intentionally sprayed Nisreen and Tariq to stop a perceived attack, a reasonablejurorcould logically conclude thatthe act did not constitute malicious harassment because itwas done in lawful selfdefense. On this record, we conclude there is a reasonable probability that at least onejurorwould have refused to convict Nereim ofthird degree assault if they had been instructed that self-defense could also be considered forthat charge. The State argues thatthe instructions were sufficient because they allowed Nereim to argue thatthe unintentional spraying of Corrwas notwrongful and therefore not criminally negligent. But “[a] defendant in a criminal case is

9No. 78774-8-1/10

entitled to have thejuryfully instructed on the defense theory ofthe case.” State
v. Staley, 123 Wn.2d 794, 803, 872 P.2d 502 (1994). Reading the instructions as a whole, a reasonablejuror could conclude thatthe absence ofa self-defense instruction forthe third degree assault charge meantthat Nereim’s act of pepper spraying Nisreen and Tariq in self-defense was nevertheless unlawful in the context ofthat charge. The State further argues thatthejury could not have convicted Nereim of assault ifthe State had not disproven self-defense against Nisreen and Tariq. The State asserts thatthis leaves onlytwo possible scenarios: eitherthejury accepted Corr’s suggestion that Nereim intentionally peppersprayed him, orthe jury believed Nereim acted wrongfully by pepper spraying Nisreen and Tariq but
was not convinced the actwas based on his perception thattheywere Muslims. Butwe agree with Nereim that it is not possible to establish precisely howthe jurors reached consensus on the third degree assault charge and notthe malicious harassment charges. The absence ofa self-defense instruction forthe third degree assault charge undermines our confidence in the result and creates
a substantial likelihood thatthe resultwould have been different. Nereim has established prejudice. Reversed.

WE CONCUR:

10