(dissenting) — Because I find self-defense does not negate the mental state element of knowledge required by the second degree assault statute, RCW 9A.36-.020(l)(b), nor does the statute define absence of self-defense as an element of the offense, I dissent.
Whether the State or the defendant bears the burden of proving self-defense is a reoccurring issue in Washington, as well as throughout the nation. See State v. McCullum, 98 Wn.2d 484, 656 P.2d 1064 (1983); State v. Savage, 94 Wn.2d 569, 618 P.2d 82 (1980); State v. Hanton, 94 Wn.2d 129, 614 P.2d 1280, cert. denied, 449 U.S. 1035 (1980); State v. King, 92 Wn.2d 541, 599 P.2d 522 (1979); State v. Roberts, 88 Wn.2d 337, 562 P.2d 1259 (1977). While a number of jurisdictions place the burden of proof on the State, see majority opinion, at 616 n.2, others have taken a contrary position: Thomas v. Arn, 704 F.2d 865 (6th Cir. 1983); Carter v. Jago, 637 F.2d 449 (6th Cir. 1980); Baker v. Muncy, 619 F.2d 327 (4th Cir. 1980); Frazier v. Weatherholtz, 572 F.2d 994 (4th Cir. 1978); Thomas v. Leeke, 547 F. Supp. 612 (D.S.C. 1982); State v. Winter, 109 Ariz. 505, 513 P.2d 934 (1973); Richards v. State, 152 Ga. App. 201, 262 S.E.2d 469 (1979); State v. Sunday, 187 Mont. 292, 609 P.2d 1188 (1980); State v. Fischer, 183 N.J. Super. 79, 443 *626A.2d 249 (1981); McCullough v. State, 520 P.2d 820 (Okla. Crim. App. 1974); State v. Finley, 277 S.C. 548, 290 S.E.2d 808 (1982); McGhee v. Commonwealth, 219 Va. 560, 248 S.E.2d 808 (1978); State v. Belcher, 245 S.E.2d 161 (W. Va. 1978). See generally Annot., Homicide: Modern Status of Rules as to Burden and Quantum of Proof To Show Self-Defense, 43 A.L.R.3d 221 (1972 & Supp. 1983).
Recent pronouncements from the United States Supreme Court indicate states are free to determine burden of proof rules so long as the state is required to prove every element of an offense beyond a reasonable doubt. Engle v. Isaac, 456 U.S. 107, 120, 71 L. Ed. 2d 783, 102 S. Ct. 1558 (1982); Patterson v. New York, 432 U.S. 197, 201, 215, 53 L. Ed. 2d 281, 97 S. Ct. 2319 (1977). "Proof of the nonexistence of all affirmative defenses has never been constitutionally required". Patterson v. New York, supra at 210; whether self-defense is an element of a crime and must be negated by the prosecution "may depend, at least in part, on the manner in which the State defines the charged crime." Engle v. Isaac, supra at 120.
Self-defense under the common law has traditionally been considered to be an affirmative defense which the defendant had the burden to prove. Patterson v. New York, supra at 211. See LaFond, The Case for Liberalizing the Use of Deadly Force in Self-Defense, 6 U. Puget Sound L. Rev. 237, 255 (1983); Note, Burdens of Persuasion in Criminal Proceedings: The Reasonable Doubt Standard After Patterson v. New York, 31 U. Fla. L. Rev. 385, 389 (1979). Self-defense does not cancel out the existence of some required element of the crime nor does it negate any element of the crime. W. LaFave & A. Scott, Criminal Law 46-47 (1972). Instead, self-defense is a justification which bars the imposition of criminal liability. Thus, defendants need not argue they lack the requisite mental state of culpability or that the "victim" is harmed other than as a result of their actions. Rather, the defendant will claim "the existence of circumstances which, in the eyes of the law, make the killing a justifiable one on policy grounds." *627W. LaFave & A. Scott, supra at 48-49.
Self-defense under RCW 9A.16.020(3) is defined as:
The use, attempt, or offer to use force upon or toward the person of another is not unlawful in the following cases:
(3) Whenever used by a party about to be injured . . . in preventing or attempting to prevent an offense against his person ... in case the force is not more than is necessary [.]
Acosta was convicted under the second degree assault statute, RCW 9A.36.020(l)(b), which provides:
Every person who, under circumstances not amounting to assault in the first degree shall be guilty of assault in the second degree when he: . . .
(b) Shall knowingly inflict grievous bodily harm upon another with or without a weapon . . .
(Italics mine.)
The jury was instructed as to the element of knowledge by the following instruction:
A person knows or acts knowingly or with knowledge when:
(1) he or she is aware of a fact, facts or circumstances or result described by law as being a crime; or
(2) he or she has information which would lead a reasonable person in the same situation to believe that facts exist which facts are described by law as being a crime.
Acting knowingly or with knowledge also is established if a person acts intentionally.
See RCW 9A.08.010(l)(b).
To ascertain whether the absence of self-defense is an element of second degree assault it must be determined whether (1) the statute reflects a legislative intent to treat absence of a defense as one of the elements of the offense charged, or (2) one or more elements of the defense negates one or more elements of the offense. State v. McCullum, supra at 490.
The Washington Legislature in drafting and adopting its new criminal code, Laws of 1975, 1st Ex. Sess., ch. 260, intended self-defense to justify criminal activity, not to *628negate an essential element of a crime. The Legislature's silence on the burden of proof of self-defense, WPIC, Introd. to Pt. 4 Defenses, 11 Wash. Prac. at 100 (1977), evidences an intent not to add another element to second degree assault. Moreover, the placement of the "crimes" and "defenses" in separate code sections indicates a legislative objective to distinguish these definitions. With the absence of a legislative intent in the statute the next question is whether a finding of self-defense negates any element of the crime.
Prior to McCullum, all three divisions of the Court of Appeals agreed self-defense did not negate an element of a crime. See State v. Takacs, 31 Wn. App. 868, 874, 645 P.2d 1109 (1982) (Division One), remanded, 99 Wn.2d 1010, aff'd, 35 Wn. App. 914, 671 P.2d 263 (1983); State v. Acosta, 34 Wn. App. 387, 388-89, 661 P.2d 602 (1983) (Division Two); State v. Strand, 20 Wn. App. 768, 778, 582 P.2d 874 (Division Three), review denied, 91 Wn.2d 1005 (1978). But see State v. LeBlanc, 34 Wn. App. 306, 660 P.2d 1142 (Division Three), review denied, 100 Wn.2d 1021 (1983).
In Takacs the court reasoned that simply because a person acts in self-defense does not mean that same person cannot be acting with the requisite knowledge.
The State is not required to prove that the defendant knew he was committing the crime of assault in the second degree; rather, the State is required to prove that the defendant knew he was inflicting grievous bodily harm, which is described by law as being a crime. In a prosecution for assault in the second degree, the accused is not put into the position of disproving the element of knowledge by showing that he or she was acting in self-defense. Therefore, proof of self-defense does not negate the mental state element in assault in the second degree, and due process does not require the State to bear the burden of proving the absence of self-defense beyond a reasonable doubt.
State v. Takacs, 31 Wn. App. at 874, modified, 35 Wn. *629App. at 919. In Strand the court adopted the language and reasoning of State v. Bruce, 19 Wn. App. 392, 393-95, 576 P.2d 1324 (1978). Both courts found
the instruction on self-defense does not shift the burden to the defendant to disprove any fact essential to second-degree assault because the defense of self-defense bears no direct relationship to any element of second-degree assault.
State v. Strand, supra at 778 (quoting State v. Bruce, 19 Wn. App. at 395). See also WPIC 17.02, 11 Wash. Prac. at 41 (Supp. 1982).
The Court of Appeals in State v. Acosta, 34 Wn. App. 387, 661 P.2d 602 (1983) relied on the fact that self-defense "is an affirmative defense, not because it negates the knowledge element of second degree assault, but because it justifies the assault." State v. Acosta, supra at 390. I believe this reasoning is not only highly persuasive but a better statement of the law than that propounded by the majority.
Furthermore, the reasoning and result of McCullum are not apposite to this case. While proof of self-defense negates "premeditated" intent, this is not true for the element of knowledge. To act with knowledge a person must only be aware a particular result is practically certain to follow from one's conduct. Any intention as to the result is irrelevant. United States v. Bailey, 444 U.S. 394, 62 L. Ed. 2d 575, 100 S. Ct. 624 (1980); United States v. United States Gypsum Co., 438 U.S. 422, 445, 57 L. Ed. 2d 854, 98 S. Ct. 2864 (1978).
The "result" that follows under the second degree assault statute is "grievous bodily harm upon another". There is no requirement that the person intend the result described by the statute defining the offense as is required by the first degree murder statute, RCW 9A.32.030(l)(a). To be aware of the result is enough. Thus, the claim of self-defense does not negate the knowledge element of the crime. Consequently, it is possible to commit second degree assault and *630have the requisite element of "knowledge", but not be held culpable because of self-defense, State v. Acosta, supra at 390. See State v. Takacs, supra at 874; State v. Strand, supra at 778; State v. Atkinson, 19 Wn. App. 107, 115, 575 P.2d 240 (1978). While defendants may prove "justification" for their actions under RCW 9A.16, here Acosta, although able to produce evidence of self-defense, was not able to convince the jury his actions were justifiable. The record substantiates the position of the jury. Since evidence of self-defense does not negate knowledge, the State does not bear the burden of proving the absence of self-defense in a second degree assault charge.
In McCullum we modified existing case law and stated that once the issue of self-defense is properly raised "[t]he jury then should be instructed that the State bears the burden of proving the absence of self-defense beyond a reasonable doubt." State v. McCullum, supra at 500. This rule is applicable in first degree murder cases where we have held self-defense negates an element of the crime. It is not applicable where, as in this case, self-defense does not negate an element of the crime. In these circumstances I would hold the trial court need not instruct on the burden of proof for self-defense so long as the theory of the case can be fully argued by the defendant. See State v. Savage, 94 Wn.2d 569, 582, 618 P.2d 82 (1980). "If sufficient evidence is presented to raise an issue of self-defense, the court need only instruct on it without allocating the burden of proof." State v. McCullum, supra at 506 (Dimmick, J., dissenting).
Acosta was able to present fully his self-defense theory to the jury. The jury was fully instructed as to the elements of the crime and that self-defense was a "complete defense". The failure of Acosta's defense to convince the jury he acted in self-defense resulted in his conviction. The denial of a jury instruction requiring the State to prove the absence of self-defense had no prejudicial effect on the *631outcome of the case.
Brachtenbach, Dore, and Dimmick, JJ., concur with Dolliver, J.