State v. D. E. M.

1

STATE OF WASHINGTON, Respondent, v. D. E. M., Appellant.

Nos. 56197-2-II, 56204-9-II, 56207-3-II, 56214-6-II, 56217-1-II, 56224-3-II, 56227-8-II, 56234-1-II, 56237-5-II, 56244-8-II, 56247-2-II, 56254-5-II

Court of Appeals of Washington, Division 2

April 4, 2023

UNPUBLISHED OPINION

Price J.

D.E.M appeals twelve juvenile dispositions entered between 2001 and 2005. D.E.M. argues that his adjudication for fourth degree assault should be reversed because the juvenile court improperly shifted the burden to prove self-defense to him. He also argues that he is entitled to withdraw two of his guilty pleas because the pleas were not knowing, voluntary and intelligent. We affirm all twelve of D.E.M.'s juvenile dispositions.^[1]

FACTS

I. Fourth Degree Assault^[2]

On August 9, 2002, the juvenile court held a hearing on a fourth degree assault charge. The victim, M.G., testified that D.E.M. hit him. M.G. was riding his scooter when D.E.M. chased him, then punched him and pushed him down. The school bus driver who drove both D.E.M. and M.G. testified that the next day, D.E.M. told her he had punched M.G. in the stomach. The bus driver testified that D.E.M. seemed satisfied with his actions. D.E.M.'s teacher also testified that D.E.M. told her he hit M.G. D.E.M. did not tell his teacher that M.G. had hit him.

D.E.M. testified that as he was walking past M.G.'s house, M.G. walked towards him, throwing sticks. One stick hit D.E.M. in the arm. Then, M.G. punched D.E.M. in the arm and said, "What's up?" Verbatim Rep. of Proc. (VRP) (Aug. 9, 2002) at 42. D.E.M. explained, "I reacted in the way I considered that as I took self-defense action and I had punched him in the stomach." VRP (Aug. 9, 2002) at 42. D.E.M. stated that it did not hurt when M.G. punched him in the arm. D.E.M. also admitted that he and his friends often do the same thing when they are messing around. However, he felt he needed to act in self-defense because M.G.'s actions were sudden.

D.E.M.'s friend, S.G., was walking with him at the time of the incident. S.G. testified that he "saw [M.G.] punch [D.E.M.] in his arm, like, you know, like 'Hi,' you know, like as a friend."

VRP (Aug. 9, 2002) at 54. Then, D.E.M. punched M.G. in the stomach. S.G. also stated that he did not see M.G. throwing anything, although he was not watching closely.

In closing arguments, the State argued that the punch in the arm was simply a greeting and did not explain why D.E.M. would feel the need to defend himself by punching M.G. so hard he fell to the ground. D.E.M.'s attorney reminded the court that, "of course, it's the State's burden to prove beyond a reasonable doubt that this was not self-defense." VRP (Aug. 9, 2002) at 63. D.E.M.'s attorney argued that the statements D.E.M. made to his bus driver and teacher actually supported his assertion that he felt he needed to act in self-defense. And, D.E.M.'s attorney argued that because D.E.M. felt he needed to respond to M.G.'s actions with force, the State had failed to prove that the assault was not self-defense.

The juvenile court found D.E.M. guilty of fourth degree assault. In its oral ruling, the juvenile court stated that the evidence clearly established that D.E.M. punched M.G. in the stomach. The juvenile court also stated:

I can't find that there was self-defense in this matter. Even the Defendant admits that coming up to someone and, you know, a light punching action to the shoulder and saying, "What's up?" is something common among his peer group, and that that is not a threatening action. And that did not justify a punch in the stomach.

Neither does the throwing of the sticks, if that occurred. That would not have justified the punch in the stomach.

VRP (Aug. 9, 2002) at 65. The juvenile court ordered 30 days' confinement and 3 months community supervision.

II. 2003 Guilty Plea^[3]

On June 24, 2003, D.E.M. pleaded guilty to first degree theft. D.E.M. agreed to a manifest injustice sentence of 45-65 weeks' confinement. The agreement to the manifest injustice sentence was part of a global resolution of multiple cases. D.E.M.'s defense counsel pointed out "that the combined standard range on all of the pending charges to which he is pleading guilty is significantly in excess of two years." VRP (July 22, 2003) at 98. D.E.M. also stated that he understood the agreement to a manifest injustice sentence. The juvenile court imposed the agreed manifest injustice sentence of 45-65 weeks' confinement.

III. 2005 Guilty Pleas^[4]

On October 13, 2005, D.E.M. pleaded guilty to second degree malicious mischief, unlawful imprisonment, and second degree escape. D.E.M. agreed to a manifest injustice sentence of 30-40 weeks of confinement on the second degree escape. This plea was also part of a global resolution which resulted in two additional charges in the current information and an entire separate case being dismissed. D.E.M. told the juvenile court that he understood he was agreeing to a manifest injustice sentence. D.E.M.'s attorney also stated that she had met with D.E.M. multiple times to discuss all the circumstance and they both agreed that they reached a good resolution on the case. The juvenile court imposed the agreed upon manifest injustice sentence.

In September 2021, D.E.M. filed notices of appeal for the above cases. A commissioner of this court accepted D.E.M.'s late notices of appeal and consolidated the cases.^[5]

ANALYSIS

As to the fourth degree assault charge, D.E.M. argues that the juvenile court erred by improperly shifting the burden of proof from the State to the defense. D.E.M. also argues that his plea agreements to a manifest injustice sentence were not knowing, voluntary, and intelligent. We disagree.

I. Fourth Degree Assault Disposition^[6]

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).^[7]" 'Assault is an intentional touching or striking of another person that is harmful or offensive, regardless of whether it results in physical injury.'" State v. Jarvis, 160 Wn.App. 111, 119, 246 P.3d 1280, review denied, 171 Wn.2d 1029 (2011) (quoting State v. Tyler, 138 Wn.App. 120, 130, 155 P.3d 1002 (2007)).

Self-defense is a defense to fourth degree assault. See RCW 9A.16.020. "The use, attempt, or offer to use force upon or toward the person of another is not unlawful . . . [w]henever used by a party about to be injured, or . . . in preventing or attempting to prevent an offense against his or her person." RCW 9A.16.020(3). Self-defense is only available to respond to the unlawful use of force. State v. Riley, 137 Wn.2d 904, 911, 976 P.2d 624 (1999). "If the defendant meets the 'initial burden of producing some evidence that his or her actions occurred in circumstances amounting to self-defense,' then the State has the burden to prove the absence of self-defense beyond a reasonable doubt." State v. Grott, 195 Wn.2d 256, 266, 458 P.3d 750 (2020) (quoting Riley, 137 Wn.2d at 909, 910 n.2).

D.E.M.'s argument that the juvenile court improperly shifted the burden of proof lacks merit. Just because the juvenile court did not explicitly express the State's burden of proof in its ruling, it does not follow that the juvenile court improperly shifted the burden of proof. It is reasonable to presume that the juvenile court was aware of the requirements of the law, especially when D.E.M.'s attorney correctly articulated that the State had the burden to prove the absence of self-defense twice during closing argument, immediately before the juvenile court's ruling. See State v. Gower, 179 Wn.2d 851, 855, 321 P.3d 1178 (2014) (stating that "the notion that the trial judge knows and applies the law, even if he or she did not recite the particular legal rule at the time" supports the presumption that the judge will not consider inadmissible evidence in a bench trial). Moreover, the issue confronting the juvenile court was a legal, not a factual one; the facts were largely uncontested-the only issue was whether M.G.'s light punch and "What's up?" justified D.E.M. acting in self-defense.

To the extent, D.E.M. is arguing that the fourth degree assault disposition is not supported by substantial evidence, this argument also fails. We review findings of fact in a juvenile adjudication for substantial evidence. State v. A.N.J., 168 Wn.2d 91, 107, 225 P.3d 956 (2010). Substantial evidence is evidence sufficient to persuade a fair-minded person of the truth of the finding. State v. Homan, 181 Wn.2d 102, 106, 330 P.3d 182 (2014). A juvenile offender challenging the sufficiency of the evidence admits the truth of the State's evidence and all reasonable inferences that may be drawn therefrom. State v. Houston-Sconiers, 188 Wn.2d 1, 15, 391 P.3d 409 (2017). We defer to the trier of fact on issues of conflicting testimony, witness credibility, and the persuasiveness of the evidence. Homan, 181 Wn.2d at 106. The juvenile court's findings must support the conclusions of law. Id.

Here substantial evidence supported the juvenile court's finding that M.G.'s light punching action and "What's up?" was a common greeting among the general peer group. Both S.G. and D.E.M. testified that punching in the arm was a common greeting. And S.G. characterized M.G.'s actions as a friendly hello gesture. A common, friendly greeting is not an unlawful use of force that justifies acting in self-defense. See Riley, 137 Wn.2d at 911 (Self-defense is only available to respond to the unlawful use of force.). And to the extent the juvenile court did not find D.E.M.'s testimony that he felt it was necessary to respond in self-defense credible, we defer to the trier of fact on issues of witness credibility. ...