Filed
Washington State
Court of Appeals
Division Two
January 20, 2021
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 53367-7-II
Respondent,
v. UNPUBLISHED OPINION
JOSEPH KEITH MCCOURT,
Appellant.
MAXA, J. – Joseph McCourt appeals his conviction of third degree assault. The
conviction arose from an incident in which Charles Devous demanded that McCourt leave his
house, and then the two had an altercation outside in which Devous was injured. McCourt
claimed self-defense.
We hold that the trial court erred in declining to give (1) an inferior degree offense
instruction on fourth degree assault as an alternative to the charged offense of second degree
assault, and (2) a jury instruction stating that McCourt had no duty to retreat in conjunction with
self-defense instructions. Accordingly, we reverse McCourt’s third degree assault conviction
and remand for further proceedings.1
1
Because we reverse McCourt’s conviction, we do not address McCourt’s challenge to certain
legal financial obligation provisions.
No. 53367-7-II
FACTS
Background
In November 2018, McCourt and his girlfriend, Aimee Devous, temporarily moved in
with Aimee’s brother, Devous, and his wife Leslie.2 McCourt and Aimee’s previous lease ended
before they had secured new housing. Devous invited them to stay at his residence until they
could find new housing. During that time, McCourt agreed to work for Devous remodeling
homes.
On December 7, McCourt and Devous discussed McCourt’s compensation. Devous
informed McCourt that he miscalculated McCourt’s hours and that McCourt would receive less
pay than originally anticipated.
Altercation
When Devous and McCourt returned to Devous’s residence, they got into a heated
discussion about McCourt’s hours and compensation. Using profanities, Devous yelled at
McCourt and told McCourt to look at his work hours. Devous then told McCourt to get out of
his house.
McCourt and his young son went outside. McCourt then asked Devous, Aimee, and
Leslie if he could go back inside to gather their belongings. They all said yes. McCourt and his
son went back inside to collect their possessions. After McCourt and his son exited the house for
the second time, Devous followed McCourt outside.
While standing outside on the front porch and using profanity, Devous was carrying
either his phone or a piece of paper and told McCourt to look at his hours. McCourt walked
2
This opinion refers to Aimee Devous and Leslie Devous by their first names to avoid confusion
with Charles Devous. No disrespect is intended.
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No. 53367-7-II
toward Devous. At that point, a physical altercation ensued and Devous fell to the ground.
Devous sustained a broken clavicle. The State subsequently charged McCourt with second
degree assault.
Jury Trial
At trial, there was undisputed testimony about most of the events described above except
for how Devous was hurt. Devous, Leslie, and Aimee all described one version of how Devous
was hurt and McCourt described a different version.
Devous, Leslie, and Aimee testified that when Devous went outside to show McCourt his
hours, McCourt quickly charged towards Devous and tackled him to the ground in an area
covered in gravel. They said that McCourt fell on top of Devous.
McCourt testified when Devous came out of the house and asked him to look at his
hours, McCourt walked up to him. McCourt stated that he believed that Devous was about to
strike him. When Devous went to strike him, he grabbed Devous’s arm and “tipped him over.”
Report of Proceedings (RP) at 274. McCourt stated, “[H]e stuck his arm out towards me. I
grabbed his arm and pivoted him over.” RP at 274. Then McCourt “just let him go and walked
away.” RP at 274. McCourt stated that he did not mean to hurt Devous, but only wanted to
avoid being hit.
McCourt and the State agreed that the trial court should give an inferior degree offense
jury instruction on third degree assault. The court stated that it would give that instruction.
McCourt also submitted a proposed inferior degree offense instruction on fourth degree assault.
The State opposed that proposed instruction.
The trial court declined to instruct the jury on fourth degree assault, stating, “Well, it’s
very clear from the case law that an assault in the fourth degree, there is no question based on the
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No. 53367-7-II
injury here or the allegations of the injuries here that there was an assault two committed and,
therefore, a lesser of assault in the fourth degree should not be given under the case law.” RP at
309 (emphasis added). The trial court, in part, relied on an unpublished decision from this court
that the State presented, which suggested that a fourth degree assault inferior degree offense
instruction was not appropriate when there was no question that the victim sustained substantial
bodily injury.
At McCourt’s request, the trial court gave a jury instruction on self-defense. McCourt
also proposed a jury instruction stating that there is no duty to retreat when a person is defending
an attack in a place where that person has a right to be. The State opposed this instruction on the
basis that McCourt had no right to be on the property after Devous told him to leave. The court
declined to give a no duty to retreat instruction. The court stated that the “intent of the
instruction are homeowners, essentially, defending their property or people that come onto their
property.” RP at 307.
Conviction and Sentence
The jury acquitted McCourt of second degree assault but convicted him of third degree
assault. McCourt appeals his conviction.
ANALYSIS
A. INFERIOR DEGREE OFFENSE INSTRUCTION
McCourt argues that the trial court erred when it declined to instruct the jury on the
inferior degree offense of fourth degree assault because there was evidence from which a jury
rationally could find that he did not recklessly inflict substantial bodily harm. Therefore, the
evidence would have allowed the jury to convict on fourth degree assault and acquit on second
degree assault. We agree.
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No. 53367-7-II
1. Legal Principles
RCW 10.61.003 provides that a jury may find a defendant not guilty of the charged
offense but guilty of an offense with an inferior degree. A party requesting an instruction on an
inferior degree offense must show:
“(1) the statutes for both the charged offense and the proposed inferior degree
offense proscribe but one offense; (2) the information charges an offense that is
divided into degrees, and the proposed offense is an inferior degree of the charged
offense; and (3) there is evidence that the defendant committed only the inferior
offense.”
State v. Fernandez-Medina, 141 Wn.2d 448, 454, 6 P.3d 1150 (2000) (quoting State v. Peterson,
133 Wn.2d 885, 891, 948 P.2d 381 (1997)) (internal quotation marks omitted).
The third requirement is the factual component of the test. An inferior degree offense
instruction must be given if the evidence would permit a jury rationally to convict only on the
inferior offense and acquit on the greater offense. Fernandez-Medina, 141 Wn.2d at 456.
When determining whether the evidence was sufficient to support an inferior degree
offense instruction, we must view the evidence in the light most favorable to the party that
requested the instruction. Id. at 455-56. However, the evidence must affirmatively establish that
the inferior degree offense was committed – “it is not enough that the jury might disbelieve the
evidence pointing to guilt.” Id. at 456.
We review application of the factual component of the inferior degree instruction test for
an abuse of discretion. See State v. Condon, 182 Wn.2d 307, 316, 343 P.3d 357 (2015) (stating
the standard of review in lesser included defense cases). However, the trial court necessarily
abuses its discretion if it declines to give an inferior degree instruction when the evidence would
permit a jury rationally to convict only on the inferior offense and acquit on the greater offense.
See Fernandez-Medina, 141 Wn.2d at 456.
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No. 53367-7-II
There is no dispute in this case that the legal prong of the inferior degree offense
instruction test has been met. Fourth degree assault is an inferior degree offense of second
degree assault. The question here is whether the factual prong has been satisfied.
2. Elements of Offenses
The State charged McCourt with second degree assault under RCW 9A.36.021(1)(a). A
person is guilty of second degree assault as defined in that statute if the person “[i]ntentionally
assaults another and thereby recklessly inflicts substantial bodily harm.” RCW 9A.36.021(1)(a)
(emphasis added). A person 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). RCW 9A.04.110(4)(b) defines “substantial bodily harm” to mean
“bodily injury which involves a temporary but substantial disfigurement, or which causes a
temporary but substantial loss or impairment of the function of any bodily part or organ, or
which causes a fracture of any bodily part.”
The trial court gave an inferior degree instruction on third degree assault under RCW
9A.36.031(1)(f). A person is guilty of third degree assault as defined in RCW 9A.36.031(1)(f) if
the person “[w]ith criminal negligence, causes bodily harm accompanied by substantial pain that
extends for a period sufficient to cause considerable suffering.” (Emphasis added.) A person
acts with criminal negligence when “he or she fails to be aware of a substantial risk that a
wrongful act may occur and his or her failure to be aware of such substantial risk constitutes a
gross deviation from the standard of care that a reasonable person would exercise in the same
situation.” RCW 9A.08.010(1)(d).
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No. 53367-7-II
A person is guilty of fourth degree assault “if, under circumstances not amounting to
assault in the first, second, or third degree, or custodial assault, he or she assaults another.”
RCW 9A.36.041(1)3. An “assault” includes unlawfully touching another with criminal intent.
State v. Hahn, 174 Wn.2d 126, 129, 271 P.3d 892 (2012).
In other words, second degree assault requires an intentional assault and both reckless
conduct and substantial bodily harm. Third degree assault requires both criminal negligence and
bodily harm. Fourth degree assault is an unlawful touching that either (1) does not involve either
reckless conduct or criminal negligence or (2) does not involve substantial bodily harm or bodily
harm.
Significant here, if a defendant did not recklessly cause harm, then under the plain
language of RCW 9A.36.021(1)(a) the defendant cannot be convicted of second degree assault.
See State v. Melland, 9 Wn. App. 2d 786, 803-05, 452 P.3d 562 (2019) (holding that the State
presented insufficient evidence to support a second degree assault conviction when there was no
evidence of reckless conduct even though the defendant intentionally assaulted the victim and
caused substantial bodily injury); State v. R.H.S., 94 Wn. App. 844, 846-47, 974 P.2d 1253
(1999) (addressing sufficiency of evidence of recklessness even though the defendant conceded
an intentional assault and substantial bodily harm). And the seriousness of the injury alone
cannot support a finding that the defendant acted recklessly. See Melland, 9 Wn. App. 2d at 805.
3. Trial Court Misinterpretation
In declining to give a fourth degree instruction, the trial court focused only on the nature
of the injury Devous sustained. The court ruled that “there is no question based on the injury
3
RCW 9A.36.041 has been amended since the events of this case transpired. Because these
amendments do not impact the statutory language relied on by this court, we refer to the current
statute.
7
No. 53367-7-II
here or the allegations of the injuries here” that McCourt committed only second degree assault.
RP at 309 (emphasis added). The court apparently believed that because Devous’s broken
clavicle constituted substantial bodily harm, the evidence did not support a conviction of fourth
degree assault.
However, the existence of substantial bodily harm is only one requirement of second
degree assault. The other requirement is that the defendant recklessly inflict substantial bodily
harm. As noted above, a defendant cannot be convicted of second degree assault if the
defendant’s conduct was not reckless. See Melland, 9 Wn. App. 2d at 803-05. The trial court
ignored this second requirement.
The trial court stated that “it’s very clear from the case law” that the State submitted that
McCourt was not entitled to a fourth degree assault instruction. RP at 309. The only case the
State presented (other than Fernandez-Medina, which states only the analytical framework) was
an unpublished opinion from this court, State v. Toston, No. 49871-5-II (Wash. Ct. App. July 31,
2018) (unpublished), https://www.courts.wa.gov/opinions/pdf/D2%2049871-5-
II%20Unpublished%20Opinion.pdf/. In Toston, the defendant punched a person in the face and
chipped his tooth. Toston, No. 49871-5-II, slip op. at 2. This court ruled that the defendant was
not entitled to an instruction on fourth degree assault. Id. at 7. The court stated that it was
undisputed that the victim had sustained a broken tooth. Id. “Therefore, there is no evidence
that fourth degree assault – an assault that does not result in substantial bodily harm – was
committed.” Id.
In Toston, the court focused only on substantial bodily injury because there was no
question that the defendant recklessly caused injury – he punched the victim in the face. See
State v. Keend, 140 Wn. App. 858, 870, 166 P.3d 1268 (2007) (holding that the defendant
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No. 53367-7-II
recklessly inflicted harm when he punched the victim in the face). Assuming that the defendant
engaged in reckless conduct, the court in Toston was correct that a fourth degree assault
instruction was not appropriate when the victim sustained substantial bodily harm. Nevertheless,
because the court did not express this assumption, the language used in Toston is misleading.
Under the plain statutory language, fourth degree assault is not “an assault that does not result in
substantial bodily harm.” See Toston, No. 49871-5-II, slip op. at 7; RCW 9A.36.041(1). Fourth
degree assault is an assault that is not reckless or criminally negligent even if it results in
substantial bodily harm.
We conclude that the trial court erred in basing its inferior degree offense instruction
ruling only on the existence of substantial bodily harm rather than also determining whether the
evidence supported a finding that McCourt did not engage in reckless or criminally negligent
conduct.
4. Recklessly Inflicting Substantial Bodily Harm
There is no dispute that McCourt intentionally assaulted Devous and inflicted substantial
bodily harm. The issue here involves whether McCourt recklessly inflicted substantial bodily
harm as required in RCW 9A.36.021(1)(a).4
Significantly, the question is not whether the evidence even when viewed in the light
most favorable to McCourt was sufficient for a jury to find that McCourt recklessly caused
4
The State emphasizes that in the trial court, McCourt never articulated a fourth degree assault
instruction as required. The State also notes that McCourt never argued the reckless conduct
requirement in the trial court. However, the record shows that the trial court simply announced
that it was very clear from the case law that only second degree assault was committed based on
Devous’s injury. It appears from the record on appeal that McCourt’s counsel was not given an
opportunity to argue the issue.
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No. 53367-7-II
significant bodily harm. The question is whether there was evidence that would permit a jury
rationally to find that McCourt did not recklessly cause substantial bodily harm and therefore
committed only fourth degree assault to the exclusion of second degree assault. See Fernandez-
Medina, 141 Wn.2d at 456.
As noted above, a person acts recklessly when (1) “he or she knows of and disregards a
substantial risk that a wrongful act may occur,” and (2) “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) (emphasis added). The mental state of recklessness has both a
subjective and objective component, which means the State must prove both what the defendant
actually knew and how a reasonable person in that situation would have acted. State v. Rich, 184
Wn.2d 897, 904, 365 P.3d 746 (2016).
Here, the evidence – viewed in the light most favorable to McCourt – showed that
Devous stuck his arm out to strike McCourt. McCourt grabbed Devous’s arm to prevent himself
from being hit, pivoted Devous, tipped him over, and let him go. McCourt did not intend to hurt
Devous; he was only trying to avoid being struck.
The first question is whether McCourt actually knew whether grabbing Devous’s arm and
tipping him over onto the gravel involved a substantial risk of a wrongful act – that Devous
would sustain substantial bodily harm. Arguably, McCourt knew that tipping Devous onto the
ground created a substantial risk that Devous might sustain some harm. A reasonable person
might expect that Devous could suffer minor injuries like scratches, bumps, or bruises.
However, neither McCourt nor a reasonable person necessarily would know that there was a
substantial risk that Devous would suffer substantial bodily injury – “fracture of any bodily part”
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No. 53367-7-II
or sustain “substantial disfigurement” or a “substantial loss or impairment of the function of any
bodily part or organ.” RCW 9A.04.110(4)(b).
The State cites to Keend, where the court held that the defendant was not entitled to a
fourth degree assault instruction when he punched the victim and broke his jaw. 140 Wn. App.
at 869-70. The court rejected the argument that the defendant did not recklessly inflict
substantially bodily harm, stating, “ ‘Without question, any reasonable person knows that
punching someone in the face could result in a broken jaw, nose, or teeth, each of which would
constitute substantial bodily harm.’ ” Id. at 870 (quoting R.H.S., 94 Wn. App. at 847). However,
grabbing someone by the arm and tipping him over onto the ground clearly does not present the
same risk of causing substantial bodily injury as punching someone in the face.
This case is more similar to Melland, where the court held that sufficient evidence did not
support a second degree assault conviction because there was no evidence that the defendant
acted recklessly when he inflicted substantial bodily harm. 9 Wn. App. 2d at 805. In Melland,
the defendant fractured the victim’s finger as he grabbed a phone from her hand. Id. at 804-05.
The court stated that there was insufficient evidence to prove the mens rea of recklessness. Id. at
805. The court explained that evidence of the seriousness of the injury only supported finding
that the defendant inflicted substantial harm, but did not show that the defendant acted recklessly
in doing so. Id.
We conclude that based on the evidence presented by McCourt and viewing the evidence
in the light most favorable to McCourt, a jury rationally could find that McCourt did not commit
second degree assault because he did not know that there was substantial risk that his conduct
would cause substantial bodily injury. And in fact, the jury did acquit McCourt of second degree
assault.
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No. 53367-7-II
The second question is whether even if McCourt disregarded a substantial risk that
Devous would suffer substantial bodily jury, disregarding that risk was “a gross deviation from
conduct that a reasonable person would exercise in the same situation.” RCW 9A.08.010(1)(c).
Defending oneself against a blow from another by grabbing the assailant’s arm and tipping him
to the ground does not necessarily constitute a gross deviation from the reasonable person
standard. A reasonable person might well do the same thing as McCourt in this situation.
We conclude that based on the evidence presented by McCourt, a jury rationally could
find that McCourt did not commit second degree assault because his conduct did not constitute a
gross deviation from a reasonable person’s conduct in the same situation. Therefore, we hold
that the trial court erred in failing to give McCourt’s proposed inferior degree instruction on
fourth degree assault.
5. Criminal Negligence
We also briefly address third degree assault. This is because the jury found McCourt not
guilty of second degree assault, so the State can retry him only for third degree assault.
Third degree assault requires that the defendant act with “criminal negligence.” RCW
9A.36.031(1)(f). As noted above, a person acts with criminal negligence when “he or she fails to
be aware of a substantial risk that a wrongful act may occur and his or her failure to be aware of
such substantial risk constitutes a gross deviation from the standard of care that a reasonable
person would exercise in the same situation.” RCW 9A.08.010(1)(d) (emphasis added).
The definition of criminal negligence essentially is the same as the definition of
recklessness, except the standard is “failure to be aware” rather than “knows.” Therefore, the
analysis for the second question for second degree assault discussed above is similar for third
degree assault. For the reasons stated above, viewing the evidence in the light most favorable to
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No. 53367-7-II
McCourt, a jury rationally could find that McCourt did not commit third degree assault and
committed only forth degree assault because his conduct did not constitute a gross deviation
from a reasonable person’s conduct in the same situation.
B. NO DUTY TO RETREAT INSTRUCTION5
McCourt argues that the trial court erred when it declined to instruct the jury, as part of
his theory of self-defense, that he had no duty to retreat if he was in a place where he was
entitled to be. We agree.
1. Legal Principles
Jury instructions are sufficient if, when read as a whole, they state the law correctly and
allow the defendant to argue his or her theory of the case. State v. Wilson, 10 Wn. App. 2d 719,
727, 450 P.3d 187 (2019).
A person has no duty to retreat when assaulted in a place where he or she has a right to
be. In re Pers. Restraint of Harvey, 3 Wn. App. 2d 204, 215, 415 P.3d 253 (2018). WPIC 17.05
states this rule:
It is lawful for a person who is in a place where that person has a right to be and
who has reasonable grounds for believing that [he] [she] is being attacked to stand
[his] [her] ground and defend against such attack by the use of lawful force.
[The law does not impose a duty to retreat.] [Notwithstanding the requirement that
lawful force be “not more than is necessary,” the law does not impose a duty to
retreat. Retreat should not be considered by you as a “reasonably effective
alternative.”]
5
Even though we are reversing McCourt’s conviction, we address this issue because it likely will
arise again on retrial.
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No. 53367-7-II
11 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 17.05, at
280 (4th ed. 2016) (WPIC). McCourt’s proposed instruction included the first paragraph and the
first bracketed sentence.6
When a defendant is entitled to a self-defense instruction, a no duty to retreat instruction
is required when the jury “may objectively conclude that flight is a reasonably effective
alternative to the use of force in self-defense.” State v. Redmond, 150 Wn.2d 489, 495, 78 P.3d
1001 (2003). “The trial court cannot allow the defendant to put forth a theory of self-defense,
yet refuse to provide corresponding jury instructions that are supported by the evidence in the
case.” Id. Conversely, such an instruction is not required when the defendant had no
opportunity to retreat. See State v. Studd, 137 Wn.2d 533, 549, 973 P.2d 1049 (1999)
(instruction not required when the defendant was being held at gunpoint, making retreat an
unreasonable alternative).
We generally review a trial court’s decisions on jury instructions for an abuse of
discretion. Wilson, 10 Wn. App. 2d at 727. But when the trial court refuses to give a requested
jury instruction based on a ruling of law, then our review is de novo. Id.
2. Right to Be on the Property
The trial court declined to give the proposed no duty to retreat instruction because it
believed the purpose of the instruction is to provide homeowners a means to defend their
property. The court reasoned that the instruction did not apply to McCourt because he was a
temporary guest. However, the doctrine of no duty to retreat is not strictly limited to
circumstances that take place in someone’s house or on private property. See Redmond, 150
6
The instruction’s second paragraph has two bracketed alternatives, and generally the trial court
must select one of those two alternatives. WPIC 17.05 cmt.
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No. 53367-7-II
Wn.2d at 491, 495 (instruction required for fight in school parking lot); State v. Williams, 81 Wn.
App. 738, 740-41, 744, 916 P.2d 445 (1996) (instruction required for homicide in public street).
McCourt argues that he was entitled to a no duty to retreat instruction because he had
Devous’s express or implied permission to remain on the property. As a result, he asserts that he
was an invitee or licensee who had the right to be on the property, not a trespasser. We agree.
Before this incident, McCourt clearly had permission to be in Devous’s residence and
property based on Devous’s express invitation. Devous initially revoked that permission by
demanding that McCourt leave the residence, but then allowed McCourt to gather his
belongings. Then, before McCourt could leave the property, Devous called him over to look at
his hours. Under these circumstances, there was evidence that McCourt still had express or
implied consent to be on Devous’s property.
3. Retreat as an Issue
The State argues that McCourt was not entitled to a no duty to retreat instruction because
there was no evidence that McCourt could have avoided the use of force by retreating. We
disagree.
In Redmond, two people got into a fight in a high school parking lot. 150 Wn.2d at 491.
The defendant testified that he punched the victim in self-defense after the victim approached
him with clenched fists. Id. Because they were standing in an open parking lot, the court stated
that the defendant was entitled to a no duty to retreat instruction because he easily could have
retreated. Id. at 494-95. It was immaterial that the defendant subjectively did not think he could
physically outrun the victim because the facts showed that he objectively had a reasonable
opportunity to retreat. Id. at 494.
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No. 53367-7-II
The situation here is analogous to Redmond. While standing outside, McCourt could
have avoided the use of force by backing away and staying out of reach of Devous when he
allegedly started to swing his arms towards him. Devous did not have a weapon that would have
prevented a retreat. Therefore, the evidence shows that McCourt had an opportunity to retreat.
We conclude that McCourt was entitled to a no duty to retreat instruction. Therefore, we
hold that the trial court erred in failing to give the instruction.
CONCLUSION
We reverse McCourt’s third degree assault conviction and remand for further
proceedings. On retrial, McCourt will be entitled to both an inferior degree instruction on fourth
degree assault and a no duty to retreat instruction.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2.06.040, it is so ordered.
MAXA, J.
We concur:
WORSWICK, P.J.
GLASGOW, J.
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