State Of Washington, Respondent V. Tiana M. Bolden, Appellant

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON t/j L.-
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STATE OF WASHINGTON, 	] 	NO. 75241-3-1
Respondent, 	] 	DIVISION ONE r
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v. 	] 	UNPUBLISHED OPINION 	*~ry
TIANA MILIANI BOLDEN, • •
Appellant. 	i 	FILED: 	July 25, 2016
Leach, J. — Tiana Bolden appeals her second degree assault conviction. 	For
the 	first 	time, 	she 	contends 	that 	the 	trial 	court's 	jury 	instructions 	contained 	an
incomplete definition of assault. 	Because she does not show any error, let alone a
manifest constitutional error, we affirm.
FACTS
Based on allegations that Bolden threw Markliann Bartlett to the ground, struck
her repeatedly with her fists, and injured her, the State charged Bolden with second
degree assault.
The evidence at trial established that Bolden and Bartlett had a longstanding
romantic relationship. The incident occurred in an apartment they shared with a married
couple, Elizabeth and Jacob Crouch.
According to Bartlett, the incident began with a heated argument between her
and Bolden. 	At one point, Bolden asked Bartlett to leave because she was "going to
start throwing stuff." 	Bartlett responded," You would do that, 	because you're that

No. 75241-3-1/2
immature." 	Fearing Bolden would start throwing things "because she'd done it before,"
Bartlett turned to leave. 	As she did so, she felt "this force" behind her "grabbing [her]
clothes."
Then 	Bolden 	threw 	Bartlett 	down, 	straddled 	her 	stomach, 	and 	hit 	her
approximately ten times on her chest and upper stomach with closed fists. 	Bolden fell
forward. 	She 	flattened herself on top of Bartlett, wrapped 	her arms 	around her
shoulders, and started rolling around on the ground. 	After about a minute, Bolden got
off Bartlett and started pacing the room. 	She eventually pushed Bartlett to the ground
again "and started to basically do the same thing that she had done before." This lasted
a "few minutes."
Elizabeth and Jacob Crouch testified they were in the apartment most of that
day. 	They did not notice anything unusual. 	Nor did they observe anything unusual
about Bartlett 	the 	next 	day. 	Elizabeth 	testified 	that Bartlett's 	physical 	condition
appeared unchanged from before the incident. 	Jacob noticed no impairment or strange
movements, testifying that Bartlett got in and out of a vehicle without difficulty and
carried a laptop bag over her shoulder.
Bartlett testified that the day after the incident, she drove Bolden to the ferry.
That night, Bartlett's stepbrother, Robert Lucy, called and asked her to help him move
boxes and furniture. 	Bartlett asked Bolden if she would help. 	The two of them drove to
Robert's house. 	Bartlett testified she was unable to move heavy objects due to "a

No. 75241-3-1/3
significant amount of pain." 	But Robert testified that Bartlett climbed up a ladder and
handed down items without difficulty.
Two days after the altercation, Bartlett was still in "a lot of pain" but went to work
because she was afraid 	of losing 	her job. 	After work, 	a friend 	drove 	her to the
emergency room (ER). 	There, a doctor encouraged her to make a police report.
Dr. Matt Hoertkorn testified about his examination of Bartlett in the ER. 	Bartlett
told him she had been punched in the chest multiple times. 	Dr. Hoertkorn did not see
any bruising or marks in that area, but X-rays showed four fractured ribs. 	He could not
determine the age of the fractures.
Bremerton 	Police Officer Jeffrey Inklebarger described 	Bartlett's appearance
when she reported the incident at the police station: 	"[s]he appeared to be in severe
pain." 	Officer Inklebarger interviewed Bolden at her apartment. 	Bolden told him she
"was expecting the police to show up." 	Officer Inklebarger read Bolden her Miranda1
rights, which she waived. 	When the officer asked 	Bolden to describe the incident,
Bolden became emotional and said she had grabbed Bartlett and then blacked out.
Officer Inklebarger then arrested Bolden.
Defense investigator Chris Mace testified that Bolden told him Bartlett tried to
leave during the argument. 	Bolden said she became distraught, lunged to keep Bartlett
from leaving, and then blacked out.
1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
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No. 75241-3-1/4
The court instructed the jury that to convict Bolden of second degree assault,
they had to find that Bolden "intentionally assaulted" Bartlett "and thereby recklessly
inflicted substantial bodily harm." 	The State proposed the following instruction defining
assault: 	"An assault is an intentional touching or striking of another person that is
harmful or offensive regardless of whether any physical injury is done to the person."
Defense counsel expressed concerns about the instruction.
[DEFENSE COUNSEL]: 	But I guess I would just—it's a 	useful
instruction with the assault cases. 	That's what the [Washington Pattern
Jury Instructions]!21 tell me.
There's a number of variations that can be used in the instruction,
and Counsel has selected this one. 	I'm just concerned about how it tells
the jury that simply touching is an assault and concerned that they will
think that that's all that's required in this case.
THE COURT: 	Well, it requires not only a touching but that the
touching be harmful or offensive.
[DEFENSE 	COUNSEL]: 	Right. 	It doesn't go to the extent of
injuries and what was stated by the victim.
THE COURT: 	Okay.
[DEFENSE COUNSEL]: 	/ did read the WPICs, and they feel that
the 	intention 	instruction—specific 	intent instruction 	is 	useful 	in 	that
scenario.
THE COURT: 	Okay. 	So you're objecting to [Instruction] 9?
[DEFENSE COUNSEL]: 	Yes.
THE COURT: 	Okay. Any response . . . ?
[PROSECUTOR]: 	Just that there is an inference that the injury
could have occurred not as a result of striking but with actual touching
2 11 Washington Practice: Washington Pattern jury instructions: criminal
(3d ed. 2008) (WPIC).
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No. 75241-3-1/5
when 	the 	defendant 	rolled 	around 	with 	the 	victim 	on 	the 	floor 	and
straddled her chest as well with her—with both legs.
If we just were to use "striking," it would be confusing based on the
evidence that's been presented. 	I believe including the word "touching" is
appropriate and supported by the WPICs, and I would ask the Court to
instruct as the State proposes.
THE COURT: 	[Defense Counsel], your objection is part of our
record. 	I'm going to permit Instruction 9 to be part of the packet.
(Emphasis added.)
In closing argument, the prosecutor focused on Bartlett's injuries and told the
jury, "The State's only burden in this case is to prove that an assault occurred and that a
fracture was the result of the assault." 	Defense counsel focused on the absence of
bruising and other facts undermining Bartlett's claim that she was the victim of a violent
assault. The jury found Bolden guilty as charged. 	She appeals.
ANALYSIS
Bolden 	contends the 	jury 	instruction 	defining 	assault was 	"incomplete 	and
erroneous" because 	it did 	not say that "an offensive touching 	must be objectively
offensive and done with unlawful force." 	Bolden did not preserve this claim in the trial
court. 	She 	cannot 	raise 	it for 	the 	first 	time 	on 	appeal 	because 	she 	does 	not
demonstrate manifest constitutional error as required by RAP 2.5(a).
Adequacyof Objection / Manifest Constitutional Error
"'Exceptions to the failure of the trial court to give an instruction must clearly
apprise the trial judge of the points of law involved. 	Where the exception and the
discussion of it does not do so, points of law or issues involved will not be considered

No. 75241-3-1/6
on appeal."'3 	Bolden made one clear objection to the instruction defining assault, "I did
read the WPICs, and they feel that the intention instruction—specific intent instruction is
useful in that scenario." 	(Emphasis added.) 	This objection said nothing about unlawful
force or the necessity of a touching being objectively offensive. 	An appellate court
normally "will not consider errors claimed in instructions . . . unless the trial court has
had an opportunity to pass upon the asserted errors and correct them."4
Although an appellate court may consider manifest constitutional errors for the
first time on appeal,5 alleged errors in definitional instructions are generally not errors of
constitutional 	magnitude.6 	Bolden fails 	to show any 	basis for concluding that the
omissions from 	the 	instruction defining 	assault amounted to manifest constitutional
error.
3 State v. Fowler, 114 Wn.2d 59, 69, 785 P.2d 808 (1990) (emphasis added)
(quoting Seattle v. Rainwater, 86 Wn.2d 567, 571, 546 P.2d 450 (1976)), overruled on
other grounds by State v. Blair, 117 Wn.2d 479, 816 P.2d 718 (1991).
4 State v. Robinson, 92 Wn.2d 357, 361, 597 P.2d 892 (1979); State v. Harris. 62
Wn.2d 858, 872-73, 385 P.2d 18 (1963) (defendant who objects to an instruction on one
theory at trial may not make a challenge on appeal based on a new theory); accord
State v. Upton, 16 Wn. App. 195, 203, 556 P.2d 239 (1976) ("An assignment of error
against a given instruction, based upon a theory not presented to the trial court at the
time exception is taken, will not be considered on appeal.").
5 RAP 2.5(a).
6 State v. Daniels, 87 Wn. App. 149, 156, 940 P.2d 690 (1997) (assault definition
in WPIC 35 50 is not an element of the crime and cannot be challenged for the first time
on appeal); State v. Duncalf, 164 Wn. App. 900, 911, 267 P.3d 414 (2011) (because
issues involving definitional instructions are not constitutional in nature, they may not be
raised for the first time on appeal); State v. Gordon, 172 Wn.2d 671, 677, 260 P.3d 884
(2011) (if instructions properly inform jury of elements of crime, any error in further
defining terms used in the elements is not error of constitutional magnitude).

No. 75241-3-1/7
Adequacy of Instruction
Even if Bolden had made that showing, her challenges to the court's instruction
would fail. 	She contends the instruction should have said that an assault is something
done "with 	unlawful force." 	But WPIC 35.50—the pattern 	instruction on which the
court's instruction was based—states in its note on use that the phrase "with unlawful
force" should be used "if there is a claim of self[-]defense or other lawful use of force."
Bolden did not make a specific claim of lawful force.7 	Her counsel focused his closing
argument on whether any assault happened and if it caused Bartlett's fractures. 	He
made no claim that Bolden's alleged punching was lawful.
Bolden 	also 	contends the 	instruction 	should 	have 	stated 	that a 	touching 	is
offensive only if it "would offend an ordinary person who is not unduly sensitive."8 	But
that was not Bolden's theory of the case. 	Moreover, the court's instructions did not
prevent her from arguing that point to the jury. 	"Jury instructions are generally sufficient
if they are supported by the evidence, allow each party to argue its theory of the case,
and when read as a whole, properly inform the trier of fact ofthe applicable law."9
We 	reject 	Bolden's suggestion that the jury might 	have 	"concluded that an
assault occurred because Ms. Bartlett was subjectively offended" when Bolden lunged
7WPIC 35.50 note on use at 548; see also State v. Calvin, 176 Wn. App. 1, 20,
316 P.3d 509 (2013) ("The term 'unlawful force' is necessary in the definition of 'assault'
only when there is a specific argument from the defense that the use of force was
somehow lawful." (emphasis added)), 	review granted in 	part on other grounds and
remanded, 183 Wn.2d 1013 (2015).
8 WPIC 35.50, at 547.
9 Feroen v. Sestero, 182 Wn.2d 794, 803, 346 P.3d 708 (2015); see also State v.
Knutz, 161 Wn. App. 395, 403, 253 P.3d 437 (2011).

No. 75241-3-1/8
at and grabbed 	her "and not because the touching was objectively offensive." 	To
convict Bolden, the jury had to find that she assaulted Bartlett and "thereby recklessly
inflicted substantial bodily harm." 	(Emphasis added.) 	Any touching causing substantial
bodily harm would also be objectively offensive. 	In addition, 	nothing in the record
supports 	Bolden's suggestion. 	Counsel's 	argument did not focus on whether an
offensive touching occurred when Bolden grabbed Bartlett. 	Rather, consistent with the
elements of the offense, 	it focused on whether a violent assault sufficient to cause
substantial bodily harm occurred.
Finally, Bolden claims in a statement of additional grounds for review that her trial
counsel originally planned to call both Bolden and Heather McDaniel to testify at trial but
then changed his mind on the eve of trial. 	She appears to contend her counsel's
decision amounted to ineffective assistance of counsel. 	This claim involves matters
outside the record and therefore must be raised in a personal restraint petition.10
We affirm.
WE CONCUR:
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10 State v. McFarland, 127 Wn.2d 322, 338, 899 P.2d 1251 (1995).
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