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Court of Appeals Division III
State of Washington

Opinion Information Sheet

			

                                                                FILED

                                                           JUNE 07, 2012

                                                     In the Office of the Clerk of Court
                                                   WA State Court of Appeals, Division III

          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                     DIVISION THREE

STATE OF WASHINGTON,                                      No.  29647-4-III
                                                )
                             Respondent,        )
                                                )
         v.                                     )
                                                )
CHRISTOPHER J. GARDNER,                         )
                                                )         UNPUBLISHED OPINION
                             Appellant.         )
                                                )

       Sweeney, J.  --  The showing necessary to support a jury instruction on self-

defense is modest.  The defendant need present only some evidence that he acted in self-

defense.  Here, the court refused the defendant's request for a self-defense instruction 

because there was no showing that the defendant struck his victim in self-defense.  

Indeed, the defense here was that the defendant had not struck the victim at all.  We then 

affirm the conviction for fourth degree assault. 

                                            FACTS

       Ronnie Martinez Quintana and Christopher J. Gardner were friends.  Mr. Gardner  

No. 29647-4-III
State v. Gardner

began dating Mr. Quintana's estranged wife and their friendship ended. 

       The two men had a physical confrontation on March 17, 2010.  Mr. Quintana said 

that Mr. Gardner punched him in the jaw.  His physician testified that Mr. Quintana had a 

broken jaw and that it was consistent with being struck in the jaw.  Mr. Gardner testified 

that there had been a confrontation where Mr. Quintana yelled, gestured wildly, called 

Mr. Gardner a racial slur, and chest-bumped Mr. Gardner.  Mr. Gardner admitted to 

pushing Mr. Quintana because "I wanted him out of my space."  Report of Proceedings 

(RP) at 173.  He denied punching Mr. Quintana:  "I don't think so.  I mean -- there was a 

lot that happened.  He -- when I pushed him, he hit the wall.  I'm not sure." RP at 177.  

       Mr. Gardner asked the court to instruct the jury on self-defense.  The court refused 

to do so because Mr. Gardner denied punching Mr. Quintana:

       Whether he has a general sense of apprehension when he goes into the 
       stairwell is not the issue.  The question is, is he defending himself at that 
       point, and does he then hit Mr. Quintana in the face in order to defend an 
       assault?  That is a whole different kind of case, again, than him saying, I 
       have got some fear when I go over there, and we end up chest bumping.

RP at 194-95.  And, 

       [y]ou can't have those two defenses stand, because they don't make any 
       sense together.  You have to tell the jury there was in fact the alleged 
       assault and that you're excused from the alleged assault; not that you didn't 
       do it, but if you did, it is self[-]defense.  That is not my understanding of 
       the way it works. 
              Again, that I think is the standard of law.  It is a little 
       disconcerting -- it's of concern to me, excuse me -- that the claim isn't made.  

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No. 29647-4-III
State v. Gardner

       Normally I see the claim is made at the up-front of the trial, right as you 
       come; I'm told that that's an affirmative defense, it's indicated in the 
       opening statements, and the case has that complexion of that, and we all 
       know from the get-go that that is going to be the claim.  
              It is incumbent upon the defendant to make that defense known at 
       some point.
              I suppose even setting that aside, which I suppose we can do, 
       although it's an interesting approach, I don't see how those claims can 
       stand together with each other.  That has never been the way I've 
       understood these cases to be tried.  And they have never been tried that way 
       to me, where we have two separate defenses standing, one of which admits 
       the act and claims self[-]defense as the excuse, and the other that does not.

RP at 197-98.  

       The jury found Mr. Gardner not guilty of second degree assault but guilty of fourth 

degree assault.  

                                        DISCUSSION

       Whether there was sufficient evidence to require the court to instruct the jury on 

self-defense is a question of law that we will review de novo.  State v. George, 161 Wn.

App. 86, 100-01, 249 P.3d 202, review denied, 172 Wn.2d 1007 (2011).

       Mr. Gardner contends that the court improperly denied his request for a self-

defense instruction because he failed to disclose that defense in his omnibus application.  

The court said that Mr. Gardner failed to timely disclose the defense, but the court also 

concluded that there was no factual support for the instruction.  

       The use of force is lawful "[w]henever used by a party about to be injured . . . in 

preventing or attempting to prevent an 

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No. 29647-4-III
State v. Gardner

offense against his . . . person . . . in case the force is not more than is necessary." RCW 

9A.16.020(3).  Self-defense has three elements: (1) the defendant subjectively feared that 

he was in imminent danger of bodily harm, (2) his belief was objectively reasonable, and 

(3) he exercised no more force than reasonably necessary.  State v. Werner, 170 Wn.2d 

333, 337-38, 241 P.3d 410 (2010).  

       A criminal defendant is entitled to have the jury instructed on his theory of the 

case if there is some evidence to support the theory.  State v. Walden, 131 Wn.2d 469, 

473, 932 P.2d 1237 (1997); State v. Ager, 128 Wn.2d 85, 93, 904 P.2d 715 (1995). The 

trial court must evaluate each element of self-defense to determine if a self-defense 

instruction is required.  State v. Walker, 136 Wn.2d 767, 772, 966 P.2d 883 (1998) (citing

State v. Janes, 121 Wn.2d 220, 237, 850 P.2d 495 (1993)).  The first element is 

subjective and asks the trial court "to place itself in the defendant's shoes and view the 

defendant's acts in light of all the facts and circumstances known to the defendant."  

Janes, 121 Wn.2d at 238. The second element is objective and asks "what a reasonable 

person in the defendant's situation would have done."  Id. The evidence should be 

viewed in the light most favorable to the defendant.  State v. Callahan, 87 Wn. App. 925, 

933, 943 P.2d 676 (1997).  And the evidence of self-defense may be inconsistent with the 

defendant's own testimony.  Id.  

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No. 29647-4-III
State v. Gardner

       Mr. Gardner urges that he should have been permitted to argue inconsistent 

defense theories of accident and self-defense.  And he argues that a claim of accident 

does not necessarily conflict with his request for a self-defense instruction.  Id. at 930 

n.2.  In Callahan, the court addressed whether a defendant can claim self-defense when 

he admits to intentionally using force, but claims that the injury to the victim was 

accidental.  Id. at 930.  There, Mr. Callahan admitted that he brandished a gun after a 

road rage incident but said that he accidentally shot the victim as they struggled over the 

gun.  Id. at 928.  The court noted that some Washington cases suggest that self-defense 

and accident conflict.  Id. at 930 n.2 (citing State v. Gogolin, 45 Wn. App. 640, 727 P.2d 

683 (1986); State v. Alferez, 37 Wn. App. 508, 681 P.2d 859 (1984); State v Safford, 24 

Wn. App. 783, 791, 604 P.2d 980 (1979), abrogated on other grounds by State v. Ramos, 
124 Wn. App. 334, 101 P.3d 872 (2004)).  However, any conflict is a "false conflict"1

because there was insufficient evidence of self-defense in those cases.  Id. at 930 n.3.  

       So a self-defense instruction is warranted when a defendant claims he accidentally 

injured the victim if there is also evidence of self-defense.  Id. at 933.  

       Mr. Gardner admits that he pushed Mr. Quintana in self-defense, but denies 

punching Mr. Quintana.  The trial court pointed out that the "assault isn't alleged to be 

       1 Callahan, 87 Wn. App. at 930 n.3 (quoting People v. Robinson, 164 Ill. App. 3d 
754, 516 N.E.2d 1292 (1987)).

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No. 29647-4-III
State v. Gardner

the push.  It is alleged to be the striking and the breaking of the jaw." RP at 195. The 

court invited defense counsel to reconcile Mr. Gardner's denial that he punched Mr. 

Quintana with his claim that he should be excused from punching Mr. Quintana.  Defense 

counsel suggested that the defense should be allowed because Mr. Gardner presented 

some evidence of self-defense.  We do not find it. Ultimately, Mr. Gardner denied 

committing the act underlying the second degree assault charge.  The court then correctly 

refused to instruct on self-defense.  

       The court also suggested that there was insufficient evidence of a subjective belief 

of imminent danger of bodily harm.  It characterized Mr. Gardner as having a "general 

sense of apprehension" when he came to Mr. Quintana's apartment, not fear of an assault 

from Mr. Quintana.  RP at 194-95. The court also characterized the altercation as "a 

verbal exchange and some chest bumping," not an altercation presenting danger of bodily 

harm. RP at 208.  

       Mr. Gardner testified that Mr. Quintana yelled, gestured wildly with his hands, 

and called Mr. Gardner a racial slur.  Mr. Gardner's testimony also suggests that he 

pushed Mr. Quintana, not because he believed Mr. Quintana would hit him, but because 

Mr. Quintana invaded Mr. Gardner's personal space.  The court then properly concluded 

that Mr. Gardner had no subjective fear of imminent bodily harm.  

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No. 29647-4-III
State v. Gardner

       We affirm the conviction for fourth degree assault.

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No. 29647-4-III
State v. Gardner

       A majority of the panel has determined that this opinion will not be printed in the 

Washington Appellate Reports but it will be filed for public record pursuant to 

RCW 2.06.040.

                                                    _______________________________
                                                    Sweeney, J.
WE CONCUR:

________________________________
Siddoway, A.C.J.

________________________________
Kulik, J.

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