State Of Washington, Respondent V. Daniel E. Neuman, Appellant

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
CO
STATE OF WASHINGTON,
Respondent,
v.
DANIEL EARL NEUMAN,
Appellant.
No. 70461-3-1 	-a
(Consolidated with 	~
No. 70660-8-1)
DIVISION ONE 	o
UNPUBLISHED OPINloW
FILED: 	September 15, 2014
Leach, J. 	— Daniel Neuman appeals his conviction for second degree
assault. 	He argues that the trial court violated his right to due process when it
refused to instruct the jury on self-defense. 	Because the record does not include
any evidence of Neuman's intentional use of any force in self-defense, we affirm.
FACTS
On August 16, 2012, Rogelio Rosas and his wife, Margarita Antonio, were
driving home in their green Toyota van with their two children, 17-year-old Uri
and 14-year-old Ashlee. 	Antonio was driving, and Uri was in the front passenger
seat, 	with the 	passenger side window rolled 	down. 	As 	the van 	neared 	an
intersection, 	the 	light turned 	yellow, 	and 	Antonio 	braked 	suddenly 	to 	stop.
Neuman, who was driving a maroon Volkswagen Passat, pulled up on the right
side of the van. 	Both Antonio and Uri noticed that Neuman's car was very close
to the van's passenger side. 	All four family members heard Neuman yelling, and
Uri heard Neuman say something about "stupid Mexicans." All four saw Neuman

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pointing a handgun at Uri. Antonio described Neuman's hand holding the gun as
"stretched out," and both Ashlee and Uri testified that they saw the barrel of the
gun extend out of Neuman's window. 	Uri immediately rolled up 	his window.
After the light turned green, Neuman lowered the gun and pulled his car in front
of the van. 	He then slammed on his brakes at least twice.
After a short distance, 	Neuman turned off into a shopping center. 	Uri
called 911 	and reported the incident. 	Police arrested Neuman at the shopping
center and found a handgun in open view in Neuman's car. 	The State charged
Neuman with one count of second degree assault.
At trial, 	Neuman denied pointing the gun at Uri. He testified that while
driving home, he saw a green Toyota van either stopped or driving very slowly in
front of him. 	He changed lanes to go around the van, and as he passed it,
honked his horn, "just kind of to say, hey, you know, we're coming, there's people
behind me, you 	know, 	maybe turn on your turn signal, turn on your flashers,
something, you know." 	Neuman testified that the van then came from behind him
"and cut across in front of me, trying to run me into oncoming traffic." 	He testified
that he was very scared and felt like the driver of the van was trying to kill him.
When the two vehicles stopped side by side at a stoplight, 	Neuman saw the
passenger roll the passenger side window down. 	Believing that the occupants of
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the van might try to shoot him, he pulled a handgun out of his backpack and
placed it on his lap. 	Neuman testified that he had no intention of pointing the gun
at the van's occupants or even letting them see it. 	He stated, "I wasn't trying to
scare them ... I never intended to [sic] them to see that. 	It was just merely a
precaution for how they were acting to me." 	He denied raising the gun off his lap
at any point. 	He believed that Uri saw the gun only because the van was higher
off the road than his car.
Neuman submitted proposed jury instructions on self-defense. 	The trial
court refused to give the instructions. 	A jury found Neuman guilty as charged.
Neuman appeals.
ANALYSIS
Citing the due process clause of the Fourteenth Amendment to the United
States Constitution, Neuman contends the trial court violated his right to present
a defense when it declined to instruct the jury on self-defense. 	We disagree.
The 	Fourteenth 	Amendment 	guarantees 	criminal 	defendants 	"'a
meaningful opportunity to present a complete defense.'"1 	Consistent with this
1 Holmes v. South Carolina. 547 U.S. 319, 324, 126 S. Ct. 1727, 164 L Ed.
2d 503 (2006) (quoting Crane v. Kentucky, 476 U.S. 683, 690, 106 S. Ct. 2142,
90 L Ed. 2d 636 (1986)).
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right, a defendant is entitled to have the jury instructed on his theory of the case
where the law and evidence support it.2
As 	charged 	here, 	a 	person 	commits second degree assault when 	he
assaults 	another with 	a 	deadly weapon.3 	"[Sjpecific 	intent either to 	create
apprehension of bodily harm or to cause bodily harm is an essential element of
assault in the second degree."4
The law permits a 	person to act in self-defense when 	he 	reasonably
believes that he is about to be injured and uses no more force than necessary to
prevent the offense.5 	A trial court must instruct the jury on self-defense if the
record includes "any evidence" the defendant acted in self-defense.6 	However, a
defendant is not entitled to a self-defense instruction if he denies any use of any
intentional force.7 	"One cannot deny that he struck someone and then claim that
he struck them in self-defense."8
2 State v. May. 100 Wn. App. 478, 482, 997 P.2d 956 (2000).
3RCW9A.36.021(1)(c).
4 State v. Bvrd, 125 Wn.2d 707, 713, 887 P.2d 396 (1995).
5 RCW 9A. 16.020(3); State v. Kvllo. 166 Wn.2d 856, 863, 215 P.3d 177
(2009).
6 State v. Adams, 31 Wn. App. 393, 395, 641 P.2d 1207 (1982).
7 State v. Gogolin, 45 Wn. App. 640, 643-44, 727 P.2d 683 (1986).
8 State v. Aleshire, 89 Wn.2d 67, 71, 568 P.2d 799 (1977).
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We review a trial court's refusal to give a self-defense instruction based on
insufficient evidence for abuse of discretion.9 	A trial court abuses its discretion if
it exercises it in a manifestly unreasonable manner or bases its decision upon
untenable grounds or untenable reasons.10
Neuman argues that the trial court should have instructed the jury on self-
defense because he believed the driver of the van was trying to kill him and this
was sufficient evidence that he acted in self-defense. 	But Neuman specifically
denied 	pointing the gun 	at 	Uri, 	which was the 	basis of the assault charge.
Neuman's denial defense precluded a self-defense instruction, and the trial court
did not abuse its discretion in refusing to give one. 	Furthermore, as the trial court
noted, even without a self-defense instruction, Neuman was able to argue that he
lacked the intent necessary to commit assault because he did not intend the
family 	to see the gun. 	The lack of a self-defense instruction did 	not violate
Neuman's right to present a defense.
Citing 	State v. Callahan.11 	State v. Redwine,12 and State v. Fondren,13
Neuman argues that the evidence warrants a self-defense instruction even when
9 State v. Read. 147 Wn.2d 238, 243, 53 P.3d 26 (2002).
10 Moreman v. Butcher, 126 Wn.2d 36, 40, 891 P.2d 725 (1995).
11 87 Wn. App. 925, 943 P.2d 676 (1997).
12 72 Wn. App. 625, 865 P.2d 552 (1994).
13 41 Wn. App. 17, 701 P.2d 810 (1985).

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a defendant denies the use of force, as long as evidence from any source shows
that the defendant intentionally used force. 	In Callahan, the defendant shot the
victim after a "road rage" incident. 	The defendant admitted that he brandished
the gun at the victim out of fear for his safety but denied intentionally shooting the
victim, claiming the gun discharged accidentally.14 	In Redwine, the defendant
saw a process server on his property reaching for a zippered, soft-sided case.
Afraid the case contained a weapon, he ran into his house, grabbed a shotgun
and raised it over his head so that the process server would see it.15 	In Fondren,
after a 	fight broke out on 	the defendant's property, the defendant fetched 	a
shotgun, hoping that its presence would stop the fight.16 	The gun fired, killing a
bystander.17 	The defendant denied pointing the gun at anyone, claiming that it
went off accidentally following a struggle for the gun.18
These cases are distinguishable. 	In all three, the defendants purposely
displayed a weapon in order to de-escalate or prevent an altercation. 	Each
admitted to an intentional act of force and asserted the lawful use of that force as
a defense. 	In contrast, Neuman denied an intentional act of force. 	He testified
14 Callahan, 87 Wn. App. at 928.
15 Redwine, 72 Wn. App. at 627-28.
16 Fondren, 41 Wn. App. at 19-20.
17 Fondren. 41 Wn. App. at 20.
18 Fondren, 41 Wn. App. at 20.

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that he never pointed the gun at anyone in the van and that he did not want the
family even to see the gun because he did not want to frighten them. The record
contains no evidence supporting any claim of the lawful use of force. 	The trial
court properly refused to instruct the jury on self-defense.
Affirmed.
WE CONCUR:
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