(dissenting)—I concur with the majority that the rationale of State v. McCullum, 98 Wn.2d 484, 656 P.2d 1064 (1983) is applicable to the crime of second degree assault as charged in the case at bench. In McCullum the court held that self-defense negates the culpability element of intent when the crime charged is first degree murder. Presaging the McCullum opinion, the Supreme Court held in State v. Hanton, 94 Wn.2d 129, 614 P.2d 1280, cert. denied, 449 U.S. 1035 (1980) that self-defense negates "reckless" conduct, the requirement of culpability necessary *925to sustain the charge of first degree manslaughter.10
In my view whether the culpability factor of the crime is "intent," "knowledge," or "recklessness," the State has the burden of disproving self-defense beyond a reasonable doubt. The Legislature has defined a hierarchy of culpability factors from intent through recklessness. Proof of a higher mental state necessarily establishes the lower states as well. See RCW 9A.08.010. Thus, logically, the teachings of Hanton and McCullum impel the conclusion that a crime such as second degree assault requiring "knowledge" must be treated the same as a crime requiring reckless or intentional conduct when the issue of self-defense is properly raised.
There are two alternate grounds for reversal in this case. First, and independent of the retroactivity or prospectivity of McCullum, the conviction should be reversed because *926the jury instructions were legally insufficient and prevented Takacs from arguing his theory of the case. Second, McCullum should be retroactively applied at least to those cases on direct appeal at the time it was decided.
Reversible Error To Fail To Instruct Jury That State Has Burden of Proof To Negate Self-Defense
An instruction placing any burden of proof on the defense with respect to self-defense is erroneous and constitutes reversible error. Hanton; McCullum.11 Where the instructions do not go so far as to allocate any burden of proof on a defendant but merely define self-defense they still are erroneous as insufficient. The McCullum decision leaves unchanged the standard for review of the sufficiency of jury instructions. Instructions are sufficient on a party's theory of the case if: (1) they permit the party to argue his or her theory of the case; (2) they are not misleading; and (3) when read as a whole they properly inform the trier of the fact on the applicable law. State v. Dana, 73 Wn.2d 533, 537, 439 P.2d 403 (1968); State v. Lane, 4 Wn. App. 745, 748, 484 P.2d 432 (1971); Levea v. G.A. Gray Corp., 17 Wn. App. 214, 224-25, 562 P.2d 1276 (1977).
Here the trial court did not place any burden of proof on the defendant but Takacs still could not argue his theory of the case, i.e., that the State had the burden to prove beyond a reasonable doubt the absence of self-defense, thus negating the element of knowledge. As in this court's initial opinion in State v. Takacs, 31 Wn. App. 868, 645 P.2d 1109 (1982), the trial court was operating under the mistaken belief that the defendant bore the burden of rais*927ing a reasonable doubt as to the issue of self-defense. The trial court refused to give Takacs' proposed instruction placing on the State the burden to prove the absence of self-defense. Thus by the court's refusal of the defendant's instruction and the instructions given to the jury by the trial court, Takacs was effectively precluded from arguing to the jury that self-defense negates the element of knowledge (or "unlawfulness" as characterized by the majority), and that the State must prove the absence of self-defense beyond a reasonable doubt.
The instructions given here did not properly inform the jury as to the applicable law and were in error just as if the instructions had omitted reference to the State's burden to prove any of the other elements of the offense beyond a reasonable doubt. Absent an instruction placing the burden on the State to negate self-defense, the instructions were insufficient and erroneous.
The insufficiency of these instructions is accented by the court in McCullum, which pointed out that a specific instruction allocating the burden of proof, though "technically" not necessary, would
serve three desirable ends: (1) clarify burden of proof questions and reduce the chances for jury confusion; (2) make appellate review of such issues easier, especially as to sufficiency of the evidence challenges; and (3) reduce the likelihood that future convictions would have to be reversed for errors similar to the one presented here.
McCullum, at 500.
After stating its reasons why a specific instruction is the "better approach" McCullum specifically modified Hanton and other cases:
to reflect the view expressed in State v. Roberts, [88 Wn.2d 337, 562 P.2d 1259 (1977)] at 346, that when self-defense is properly raised the jury should be "informed that the State has the burden to prove absence of self-defense beyond a reasonable doubt."
McCullum, at 500. McCullum also requires that "the jury should be informed that the State sustains its burden of *928proof as to the absence of self-defense if it proves, beyond a reasonable doubt, each of the elements of the crime as defined by the applicable statute." McCullum, at 500.
The court thus disapproved the permissive Hanton approach and unequivocally held a specific jury instruction placing the burden of proof on the State to be necessary. This mandate requires a reinterpretation of the court's earlier reference to a specific instruction not being "technically" necessary. While not "technically" necessary because, under the court's analysis, the mental state element which the State must prove negates self-defense, a specific instruction is legally necessary to avoid juror confusion and the resultant misapplication of the law.
This fear of jury error is well founded. Certainly if appellate judges found no inconsistency between acting "knowingly" yet in self-defense, see State v. Takacs, 31 Wn. App. 868, 645 P.2d 1109 (1982), lay jurors could reach that same logically defensible but apparently erroneous conclusion.12 The possibility of juror error is further illustrated by the difficulty even the majority judges experience over this issue. During this term of court they concurred in an opinion (filed but unpublished) stating "furthermore, proof of self-defense does not negate any of the elements of assault in the second degree which the State must prove beyond a reasonable doubt." State v. Dena, noted at 35 Wn. App. 1046 (1983) (I am not citing Dena as authoritative, but to reflect the analytic difficulty of this issue).
Retroactivity of McCullum
Because the McCullum requirements are expressly made applicable to "future jury instructions on self-defense", McCullum, at 500, the majority affirms the judgment and sentence at issue here and holds that McCullum is to be applied prospectively on the issue of instructions. It does *929not logically follow, however, that simply because the Supreme Court devoted some attention to advising trial courts on how best to deal with future cases it was thereby directing appellate courts to ignore its holding as to cases on appeal. Had the Supreme Court intended such a result it would not have been so subtle. Division Three rejected the majority's approach in State v. LeBlanc, 34 Wn. App. 306, 660 P.2d 1142 (1983), reasoning that "[s]ince this case is on direct appeal like McCullum, and that case was not made prospective only, we need not decide retroactivity." LeBlanc, at 309. In State v. Heath, 35 Wn. App. 269, 273, 666 P.2d 922 (1983), another panel of Division Three judges likewise ruled that "[s]ince this case is on direct appeal, like McCullum, and that case was not made prospective only, McCullum is controlling."
This conclusion is in accord with current retroactivity principles. As the majority correctly states, there are three categories of cases covered by past retroactivity principles. The United States Supreme Court, however, recognized a fourth "category" in United States v. Johnson, 457 U.S. 537, 551, 73 L. Ed. 2d 202, 102 S. Ct. 2579 (1982): the cases which could not fit neatly into any of the other three pigeonholes and were not adequately handled by the old principles. Johnson itself represented such a case for it was not just an application of "old law to new facts", nor was it "entirely new and unanticipated". In such cases the Supreme Court decided that the old retroactivity principles were inadequate and adopted Justice Harlan's approach, enunciated in the dissent in Desist v. United States, 394 U.S. 244, 258-59, 22 L. Ed. 2d 248, 89 S. Ct. 1030 (1968), reh'g denied, 395 U.S. 931 (1969), which applies new rules, at a minimum, to those cases which are still subject to direct review at the time the new decision is handed down. Johnson, at 555-56.
The present case, like Johnson, fits into this fourth category, not in the second category where the majority places it. McCullum was not a "clear break with the past" nor was it "entirely new and unanticipated". McCullum was pre*930dieted by Hanton and presents a logical extension of, rather than a break with, that precedent. Requiring a specific instruction allocating the burden of proof to the State thus cannot be characterized as an entirely new and unexpected legal principle and should not be prospective only. See generally In re Lile, 100 Wn.2d 224, 226, 668 P.2d 581 (1983). Additionally, new doctrine designed to correct instructional error which "substantially impairs [the] truthfinding function" of a criminal trial must be given complete retroactive effect. Hankerson v. North Carolina, 432 U.S. 233, 243, 53 L. Ed. 2d 306, 97 S. Ct. 2339 (1977). McCullum avoids potential juror confusion and error where the trial court, as here, fails to allocate the burden of proof on self-defense (see discussion at pages 927-28). Such juror error may substantially impair the truthfinding function of the trial, affecting the due process rights of the defendant. Established retroactivity principles, as well as the language in McCullum itself, mandate retroactive application. Where some evidence of self-defense is presented, McCullum requires a specific instruction allocating the burden of proof to the State, and must be applied to all cases on direct appeal at the time it was decided.
The unfairness of prospective application of McCullum is graphically illustrated by considering the procedures in the Supreme Court while this case was pending. The Supreme Court had granted review in McCullum. Takacs' petition for review was stayed pending the decision in McCullum. The only difference in the issue was that Takacs concerned second degree assault, McCullum first degree murder. The Supreme Court, had it desired, could have granted review in Takacs and consolidated both cases for argument of a common issue. The court chose not to do so. Both defendants had requested and argued the necessity of an instruction stating that the State had to prove the absence of self-defense beyond a reasonable doubt. The trial court in both *931cases refused such an instruction. The Supreme Court opinion in McCullum was filed January 6, 1983, and on April 1, 1983, the Supreme Court granted review and remanded Takacs to this court "for further consideration in the light of State v. McCullum." In my view, the only reason the Supreme Court did not reverse Takacs and remand to superior court for new trial was to extend to this court the courtesy of permitting us to reverse our own decision.
As noted above, when the troublesome question of retro-activity was confronted by the United States Supreme Court in Desist, Justice Harlan dissented from the majority opinion which followed the established law that: ” 'the Constitution neither prohibits nor requires retrospective effect' for decisions expounding new constitutional rules affecting criminal trials". Desist, at 248. Justice Harlan stated:
[W]hen another similarly situated defendant comes before us, we must grant the same relief or give a principled reason for acting differently. We depart from this basic judicial tradition when we simply pick and choose from among similarly situated defendants those who alone will receive the benefit of a "new" rule of constitutional law.
394 U.S. at 258-59 (dissenting opinion). The United States Supreme Court came full circle in United States v. Johnson, 457 U.S. 537, 546, 73 L. Ed. 2d 202, 102 S. Ct. 2579 (1982), extensively quoting Justice Harlan's dissent and adopting his view that it is unjust to refuse to apply a new rule when it is chance, luck or events over which the defendant has no control that determines which of the cases in the pipeline of appeal will be first decided by the Supreme Court. To deny the parties who have made the same claim of error through trial and on appeal the benefit of the decision is unfair and subverts rather than serves justice by treating similarly situated parties differently.
I view it necessary, based upon the foregoing reasons, and in maintaining fairness in our admittedly imperfect system of justice that McCullum control all cases on direct appeal.
*932I would reverse and remand to the Superior Court for new trial.
Review by Supreme Court pending March 15, 1984.
The Supreme Court in McCullum at page 500 modified several opinions including Hanton "to reflect the view expressed in State v. Roberts, [88 Wn.2d 337, 562 P.2d 1259 (1977)] at 346, that when self-defense is properly raised the jury should be 'informed that the State has the burden to prove absence of self-defense beyond a reasonable doubt.'" The general culpability requirement of second degree assault established by the Legislature is "knowingly inflict grievous bodily harm ..." Thus "knowingly" is somewhere in between "intent," the basis of McCullum, and "reckless," the culpability requirement of Hanton. The Legislature provided in RCW 9A.08.010:
General requirements of culpability. (1) Kinds of Culpability Defined.
(a) Intent. A person acts with intent or intentionally when he acts with the objective or purpose to accomplish a result which constitutes a crime.
(b) . . . A person knows or acts knowingly or with knowledge when:
(c) Recklessness. A person is reckless or acts recklessly when he knows of and disregards a substantial risk that a wrongful act may occur and his disregard of such substantial risk is a gross deviation from conduct that a reasonable man would exercise in the same situation.
Recognizing the various states of mind in the general requirements of culpability, the statute also provides:
(2) Substitutes for Criminal Negligence, Recklessness, and Knowledge. When a statute provides that criminal negligence suffices to establish an element of an offense, such element also is established if a person acts intentionally, knowingly, or recklessly. When recklessness suffices to establish an element, such element also is established if a person acts intentionally or knowingly. When acting knowingly suffices to establish an element, such element also is established if a person acts intentionally.
The instruction at issue in McCullum reads:
'"When a defendant claims that he killed another in self-defense of his own person or property, the burden is upon that defendant to prove that the homicide was done in self-defense. It is not necessary for the defendant to prove this to you beyond a reasonable doubt nor by a preponderance of the evidence. The defendant sustains his burden of proof, if, from a consideration of all the evidence in the case, you have a reasonable doubt as to whether or not the injuries inflicted were done in self-defense.'" McCullum, at 487 n.2.
If the instructional error could have misled a reasonable juror as to which party bears the burden of proof the error cannot be deemed harmless beyond a reasonable doubt and requires reversal. Sandstrom v. Montana, 442 U.S. 510, 519, 61 L. Ed. 2d 39, 99 S. Ct. 2450 (1980).