DocketNumber: No. 84388-1
Citation Numbers: 170 Wash. 2d 333
Filed Date: 10/28/2010
Status: Precedential
Modified Date: 8/12/2021
¶1 At issue is whether Gary Werner was entitled to a jury instruction on self-defense in his prosecution for first degree assault after claiming he accidentally discharged a firearm when confronted by a pack of dogs. Under the facts of this case, we conclude he was and reverse his conviction.
¶2 Daniel Barnes moved to the real property next to Werner. Almost immediately, Werner and Barnes began an ongoing property dispute concerning a shared easement. Barnes had at least two dogs when he moved in, a boxer and a pit bull, but soon there were up to seven dogs on Barnes’s property, including a Rottweiler and two more mixed pit bulls. At least three times before the incident giving rise to criminal charges, the dogs came onto Werner’s property and acted menacingly, barking and circling Werner. Werner started carrying a handgun with him on the property because he was afraid of the dogs. Barnes told Werner that, because he had several large dogs that might kill Werner’s dog, he intended to build a fence.
¶3 Meanwhile, the property dispute intensified, with both parties erecting makeshift fences and barriers in the easement area. One day Werner was target shooting on his property when two of Barnes’s friends approached him. One was 19-year-old Colby Galpin. Galpin told Werner his shooting was scaring Barnes’s pigs, but Werner refused to stop shooting. While the other friend held a rifle, Galpin threatened to beat Werner and warned him to vacate the easement. After about 10 minutes of arguing, the two men left.
¶5 According to Galpin, he heard Werner yelling, went down to the easement, and called off the dogs. All the dogs left except for a pit bull puppy. After the dogs left, Werner pulled the gun. Galpin did not see Werner point the gun, but only saw it go off and discharge into the ground. Werner then contacted police.
¶6 The State charged Werner with first degree assault and malicious harassment. The first trial ended in a hung jury. The State tried Werner again. Werner proposed self-defense instructions, but the trial court refused the instructions, ruling that self-defense is not available when a firearm accidentally discharges. The jury acquitted Werner of the harassment charge but found him guilty of first degree assault, finding that he was armed with a firearm during the assault. The Court of Appeals affirmed. State v. Werner, noted at 154 Wn. App. 1060 (2010). We grant Werner’s petition for review, and we reverse his conviction for reasons discussed below.
¶7 A criminal defendant is entitled to an instruction on his or her theory of the case if the evidence supports the instruction. State v. Ager, 128 Wn.2d 85, 93, 904 P.2d 715 (1995). Generally, a defendant is entitled to an instruc
¶8 The defenses of accident and self-defense are not mutually exclusive as long as there is evidence of both. State v. Callahan, 87 Wn. App. 925, 931-33, 943 P.2d 676 (1997). Surveying Washington law on the matter, the court in Callahan cited as an example State v. Fondren, 41 Wn. App. 17, 701 P.2d 810 (1985). In Fondren, the defendant testified that he pulled out a firearm because he feared for his own safety and the safety of others, believing that displaying the firearm would stop the altercation. The defendant stated that when he and the victim scuffled, the gun accidentally discharged. The court held that the defendant’s intentional use of force before the shooting provided sufficient grounds for a self-defense instruction. Fondren, 41 Wn. App. at 24; Callahan, 87 Wn. App. at 931.
¶9 The Court of Appeals in this case distinguished Callahan on the basis that Werner faced two distinct potential threats: the dogs and Galpin. The court held that, viewing the evidence in a light most favorable to Werner, there was no evidence he was justified in acting in self-defense against Galpin, the person he was charged with assaulting.
¶10 We disagree. “To prove self-defense, there must be evidence that (1) the defendant subjectively feared that he was in imminent danger of death or great bodily harm; (2) this belief was objectively reasonable; [and] (3) the defendant exercised no greater force than was reasonably necessary.” Callahan, 87 Wn. App. at 929 (citation omitted). Werner stated that he was afraid. That fear was arguably
¶11 Accordingly, we reverse the Court of Appeals and reverse Werner’s conviction.
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