COURT OF'
F ALS UV
STATE OF WASHINGTON
2018 SEP 21+ AM 9:22
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
STATE OF WASHINGTON, No. 76609-1-1
Respondent,
V.
JEREMIAH CROUCH, UNPUBLISHED OPINION
Appellant. FILED: September 24, 2018
)
SMITH, J. —Jeremiah Crouch appeals his felony conviction for second
degree assault. Because his defense counsel proposed a self-defense
instruction that improperly lowered the State's burden of proof and Crouch was
prejudiced by this deficient performance, we reverse.
FACTS
On September 28, 2016, Brian Decker, a security guard, dressed in a
police style uniform with tactical gear, including a firearm and a taser, observed
Crouch enter Walgreens with a bag that appeared to be empty. Decker later
noticed the bag seemed to be fuller than it had been when Crouch entered the
store and asked Crouch if he had slipped any Walgreens merchandise in the
bag. Crouch told Decker that he purchased the items from another store and
then produced the items(some shirts) that had the Walgreens logos and security
stickers on them. Decker pushed Crouch several times as Crouch attempted to
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leave the store with the items. Decker testified that Crouch then admitted to
taking the shirts and discarded them when Decker informed him he could not
leave the store with them as that would be shoplifting. After Crouch discarded
the items, Decker told Crouch that he was being detained for shoplifting and
needed to remain in the store until law enforcement arrived. Crouch again
attempted to leave the store and Decker physically detained him by pushing him
back two more times. About a minute later, Crouch took out a knife and told
Decker,"Well, I have this so !guess I'm leaving." Report of Proceedings(RP)
(Feb. 8,2017) at 157; Exhibit 3. Decker then drew his gun and told Crouch to
drop the knife. Crouch complied, put the knife in his bag, and once again
attempted to leave, walking toward Decker with his arms at his sides. When
Crouch did not respond to Decker's orders to stay, Decker used a taser on
Crouch twice, handcuffed him, and kneeled on him as Decker waited for police to
arrive.
The State charged Crouch with second degree assault. Before trial, the
parties stipulated that Decker's initial detention of Crouch was lawful, but that the
reasonableness of the amount of force used by Decker to affect the detention
was a question of fact for the jury.
At trial, the State presented two witnesses: the police officer who
responded to the scene and collected the surveillance videos and Decker. The
trial court admitted Exhibit 3, a video recording of the encounter between Crouch
and Decker that did not include audio. Crouch did not present any witnesses.
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Defense counsel proposed a self-defense instruction that is only
applicable when force is used against a police officer or correctional officer. The
proposed instruction stated, in relevant part:
A person may offer to use force to resist an arrest by someone
known by the person to be a peace officer, by the owner of a
mercantile establishment, or by the owner's authorized employee or
agent only if the person being arrested is in actual and imminent
danger of serious injury from an officer's use of excessive force.
The person may employ such force and means as a reasonably
prudent person would use under the same or similar
circumstances.
Clerk's Papers(CP)at 26(emphasis added). The trial court materially adopted
the proposed instruction. Jury Instruction 10 states, in relevant part:
A person may use or offer to use force to resist an arrest by
someone known by the person to be a security officer only if the
person being arrested is in actual and imminent danger of serious
injury from an officer's use of excessive force. The person may
employ such force and means as a reasonably prudent person
would use under the same or similar circumstances.
CP at 41 (emphasis added).
In closing arguments, defense counsel argued that Decker's use of force
against Crouch was not reasonable and because of the actual and imminent
danger of serious injury, Crouch was justified in showing Decker his knife in self-
defense. It also argued that the State did not prove that Decker was fearful of
bodily injury, an element of second degree assault.
The jury submitted several questions to the court during deliberations.
They asked to watch the surveillance video and they asked for a definition of
"unlawful force" as used in the instruction defining an assault. CP at 48. Jury
Instruction 7 stated:
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An assault is an act, with unlawful force, done with the intent to
create in another apprehension and fear of bodily injury, and which
in fact creates in another a reasonable apprehension and imminent
fear of bodily injury even though the actor did not actually intend to
inflict bodily injury.
CP at 38. At one point, the jury informed the court that it was "split on jury
instruction #7" and was "wondering about the phrase, in fact creates in another a
reasonable apprehension and imminent fear of bodily injury." CP at 50. It then
stated that "[w]e are unable to agree as to whether the evidence supports this
part of the assault charge . ." CP at 50. The court responded by telling the
jurors to "review the jury instructions as a whole" and, after further deliberations,
the jury returned a guilty verdict. CP at 51.
The trial court entered a felony judgment and sentence for second degree
assault, sentencing Crouch to 18 months confinement. Crouch appeals.
Ineffective Assistance of Counsel
Crouch argues that his counsel was ineffective because they proposed a
jury instruction that lowered the State's burden of proof. The State concedes that
the instruction given eased the State's burden and defense counsel's
performance was, therefore, deficient. Because this misstatement prejudiced
Crouch, we reverse.
An appellant may challenge a jury instruction that he proposed if it is in the
context of an ineffective assistance claim. State v. Bradley, 141 Wn.2d 731, 736,
10 P.3d 358 (2000); see also State v. Kyllo, 166 Wn.2d 856, 861, 215 P.3d 177
(2009). The invited error doctrine does not preclude review. Kyllo, 166 Wn.2d at
861. To prevail on a claim of ineffective assistance of counsel, a defendant must
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show that his counsel's performance fell below an objective standard of
reasonableness and that the deficient performance prejudiced him. Strickland v.
Washington, 466 U.S. 668, 687, 104S. Ct. 2052,80 L. Ed. 2d 674 (1984); State
v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995).
Here, the State concedes that counsel's performance was deficient
because they proposed an incorrect self-defense instruction, and we accept that
concession. RCW 9A.16.020(3) states that use of force is lawful "[w]henever
used by a party about to be injured ... in preventing or attempting to prevent an
offense against his or her person ... in case the force is not more than is
necessary[.]" "It has long been the law in Washington that self-defense may be
justified by apparent danger to the person claiming the benefit of the defense, as
opposed to actual danger." Bradley, 141 Wn.2d at 736(emphasis added).
But, the jury instruction proposed by defense counsel and the instruction
given to the jury requires a higher risk of danger for self-defense to apply. Jury
Instruction 10 states that "[a] person may use or offer to use force to resist an
arrest by someone known by the person to be a security officer only if the person
being arrested is in actual and imminent danger of serious injury from an officer's
use of excessive force." CP at 41 (emphasis added). This instruction is proper
when the force at issue is used against a police officer or a correctional officer
and it requires actual danger of serious injury. Bradley, 141 Wn.2d at 737. But,
Decker was not a police or correctional officer. We accept the State's
concession that this instruction was improper.
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The next issue is whether Crouch was prejudiced by his counsel's
deficient performance. A defendant shows prejudice where there is a reasonable
probability that the result of the trial would have been different absent the
challenged conduct. Strickland, 466 U.S. at 694. Self-defense may be asserted
as a complete defense to assault because proof of self-defense negates the
intent element of assault. State v. Brown, 94 Wn. App. 327, 343 n.4, 972 P.2d
112(1999). When raised by a defendant, the State must disprove self-defense
as part of its burden to prove beyond a reasonable doubt that the defendant
committed the offense charged. Kyllo, 166 Wn.2d at 862. The defendant's
conviction cannot stand if the jury instructions relieve the State of its burden of
proof. State v. Cronin, 142 Wn.2d 568, 580, 14 P.3d 752(2000)(citing State v.
Jackson, 137 Wn.2d 712, 727, 976 P.2d 1229 (1999).
Here, Crouch's defense relied in large part upon his self-defense claim.
According to the jury instructions, the State only had to show that there was no
actual and imminent danger of serious injury to disprove Crouch's self-defense
claim. It did not have to disprove Crouch's subjective belief as to the apparent
level of danger Decker posed. Both the State and defense counsel discussed
this incorrect standard during their closing arguments and the State emphasized
it using a power point slide. And, the jury's questions during deliberations
indicate that it might have struggled with the issue of what force was reasonable
under these circumstances. On this record, the State's lowered burden of proof
prejudiced Crouch.
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The State argues that Crouch was not prejudiced by Jury Instruction 10
because the evidence of his guilt was overwhelming and he did not demonstrate
that he was subjectively afraid of Decker. To be entitled to a jury instruction on
self-defense, the defendant must produce some evidence demonstrating self-
defense. State v. Walden, 131 Wn.2d 469, 473, 932 P.2d 1237(1997)(citing
State v. Janes, 121 Wn.2d 220, 237, 850 P.2d 495 (1993)). The evidence is
evaluated from both a subjective point of view (what facts and circumstances
were known to the defendant) and an objective point of view (what would a
reasonable person have done in that situation). Id. at 474 (citing Janes, 121
Wn.2d at 238). The defendant may point to other evidence presented at trial,
including the State's evidence, to meet this burden of production. State v. Fisher,
185 Wn.2d 836, 850, 374 P.3d 1185(2016)(citing State v. Gabryschak, 83 Wn.
App. 249, 253, 921 P.2d 549 (1996)).
Here, the surveillance video footage in Exhibit 3, shows that Decker's gun
and taser were clearly visible to Crouch. It shows that Decker pushed Crouch
several times without any physical contact in response by Crouch before Crouch
took out his knife. Additionally, Decker testified that he was willing to detain
Crouch "at all costs" and in the video Decker appears determined and does not
display any hesitation or fear. RP (Feb. 8, 2017) at 195. This was sufficient
subjective evidence of Crouch's fear to warrant a self-defense instruction. The
State's argument to the contrary is not persuasive.
Alternatively, the State argues that Crouch was not entitled to a self-
defense instruction because he had no right to resist Decker's lawful detention.
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This argument conflates two issues:(1) whether Decker's initial detention of
Crouch was lawful and (2) whether the manner of his detention was reasonable.
At trial, Crouch and the State entered a stipulation that addressed both issues:
The parties stipulate that the detention of the defendant by Brian
Decker was lawful. The State will not argue that the detention was
lawful, and defense will not argue that the detention was unlawful.
The question of whether the amount of force used to effect the
detention is a question of fact to be decided by the jury.
CP at 7. Therefore, whether the force used by Decker was reasonable was a
question of fact for the jury and the lawfulness of the initial detention does not
affect that. State v. Miller, 103 Wn.2d 792, 795,698 P.2d 554(1985)("Whether
the force used is reasonable is a question of fact, to be determined in the light of
the circumstances of each particular case.")(quoting W.PROSSER, TORTS § 26,
at 137(3d ed. 1964)). None of the cases cited by the State stand for the
proposition that a defendant is not entitled to a self-defense instruction where a
security guard, after an initial, lawful detention, uses force that a jury could
determine was unreasonable. See id. at 793(defendant pushed store
employees first while trying to escape detention); State v. Johnston, 85 Wn. App.
549, 555-56, 933 P.2d 448(1997)(issue of whether defendant was entitled to a
self-defense instruction based on the way a store employee attempted to detain
her was not raised below and, therefore, not examined on appeal); State v.
Garcia, 146 Wn. App. 821, 828-29, 193 P.3d 181 (2008)(defendant not guilty of
third degree assault because that crime requires the defendant to assault
another with the intent to resist a lawful apprehension and the store employee
had no right to detain defendant); State v. Jones,63 Wn. App. 703, 707, 821
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P.2d 543(1992)(the instructions given permitted the defendant to argue that he
was not guilty of third degree assault because he could resist an unlawful arrest if
he believed he was about to be injured and the force used to resist was
reasonable).
The State relies on State v. Gonzales, 24 Wn. App. 437,604 P.2d 168
(1979), for the proposition that the force used by Decker was lawful because it
was a reasonable means to detain Crouch. In that case, an unarmed security
officer grabbed Gonzales by the arm to prevent him from running away after the
security officer determined that Gonzales stole a jacket. Id. at 439. In response,
Gonzales "displayed a knife and waived it at the security officer. . . ." Id. The
court held that Gonzales' detention was lawful and, even if it was unlawful, the
record did not justify Gonzales' threat to use his knife. Id. at 440. The opinion
does not address whether Gonzales raised self-defense at trial or whether such a
defense could be lawfully asserted under those facts. But here, Decker, armed
with both a gun and a taser, pushed Crouch two times after Crouch placed the
items in a basket inside the store and before Crouch got out his knife. The facts
here are distinguishable from Gonzales and Crouch was entitled to assert a self-
defense claim against Decker's use of force.
Finally, Crouch argues that he was further prejudiced by defense
counsel's decision to withdraw a jury instruction that described the self-defense
standard applicable to shopkeepers who use force against a shoplifter. He
argues that the instruction was crucial to help the jury understand whether
Decker used excessive force and did not detain him in a "reasonable manner," as
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allowed under RCW 9A.16.080. He is mistaken. The statute creates a defense
against criminal liability for shopkeepers and their agents in cases where they
exercise their right to detain a suspected shoplifter. It does not define
"reasonable manner" nor does it create a defense to the crime of assault by a
shoplifter, even where the shopkeeper uses excessive force. Because such an
instruction could be confusing, defense counsel was not deficient in withdrawing
it.
In conclusion, defense counsel was deficient in proposing a self-defense
jury instruction that lessened the State's burden of proof and Crouch was
prejudiced by that deficiency. Therefore, we reverse.
WE CONCUR:
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State Of Washington v. Jeremiah Crouch
Combined Opinion