State v. McCourt, 012021 WACA, 53367-7-II

Docket Nº:53367-7-II
Opinion Judge:MAXA, J.
Party Name:STATE OF WASHINGTON, Respondent, v. JOSEPH KEITH MCCOURT, Appellant.
Judge Panel:We concur: WORSWICK, P.J., GLASGOW, J.
Case Date:January 20, 2021
Court:Court of Appeals of Washington




No. 53367-7-II

Court of Appeals of Washington, Division 2

January 20, 2021



Joseph McCourt appeals his conviction of third degree assault. The conviction arose from an incident in which Charles Devous demanded that McCourt leave his house, and then the two had an altercation outside in which Devous was injured. McCourt claimed self-defense.

We hold that the trial court erred in declining to give (1) an inferior degree offense instruction on fourth degree assault as an alternative to the charged offense of second degree assault, and (2) a jury instruction stating that McCourt had no duty to retreat in conjunction with self-defense instructions. Accordingly, we reverse McCourt's third degree assault conviction and remand for further proceedings.1



In November 2018, McCourt and his girlfriend, Aimee Devous, temporarily moved in with Aimee's brother, Devous, and his wife Leslie.2 McCourt and Aimee's previous lease ended before they had secured new housing. Devous invited them to stay at his residence until they could find new housing. During that time, McCourt agreed to work for Devous remodeling homes.

On December 7, McCourt and Devous discussed McCourt's compensation. Devous informed McCourt that he miscalculated McCourt's hours and that McCourt would receive less pay than originally anticipated. Altercation

When Devous and McCourt returned to Devous's residence, they got into a heated discussion about McCourt's hours and compensation. Using profanities, Devous yelled at McCourt and told McCourt to look at his work hours. Devous then told McCourt to get out of his house.

McCourt and his young son went outside. McCourt then asked Devous, Aimee, and Leslie if he could go back inside to gather their belongings. They all said yes. McCourt and his son went back inside to collect their possessions. After McCourt and his son exited the house for the second time, Devous followed McCourt outside.

While standing outside on the front porch and using profanity, Devous was carrying either his phone or a piece of paper and told McCourt to look at his hours. McCourt walked toward Devous. At that point, a physical altercation ensued and Devous fell to the ground. Devous sustained a broken clavicle. The State subsequently charged McCourt with second degree assault. Jury Trial

At trial, there was undisputed testimony about most of the events described above except for how Devous was hurt. Devous, Leslie, and Aimee all described one version of how Devous was hurt and McCourt described a different version.

Devous, Leslie, and Aimee testified that when Devous went outside to show McCourt his hours, McCourt quickly charged towards Devous and tackled him to the ground in an area covered in gravel. They said that McCourt fell on top of Devous.

McCourt testified when Devous came out of the house and asked him to look at his hours, McCourt walked up to him. McCourt stated that he believed that Devous was about to strike him. When Devous went to strike him, he grabbed Devous's arm and "tipped him over." Report of Proceedings (RP) at 274. McCourt stated, "[H]e stuck his arm out towards me. I grabbed his arm and pivoted him over." RP at 274. Then McCourt "just let him go and walked away." RP at 274. McCourt stated that he did not mean to hurt Devous, but only wanted to avoid being hit.

McCourt and the State agreed that the trial court should give an inferior degree offense jury instruction on third degree assault. The court stated that it would give that instruction. McCourt also submitted a proposed inferior degree offense instruction on fourth degree assault. The State opposed that proposed instruction.

The trial court declined to instruct the jury on fourth degree assault, stating, "Well, it's very clear from the case law that an assault in the fourth degree, there is no question based on the injury here or the allegations of the injuries here that there was an assault two committed and, therefore, a lesser of assault in the fourth degree should not be given under the case law." RP at 309 (emphasis added). The trial court, in part, relied on an unpublished decision from this court that the State presented, which suggested that a fourth degree assault inferior degree offense instruction was not appropriate when there was no question that the victim sustained substantial bodily injury.

At McCourt's request, the trial court gave a jury instruction on self-defense. McCourt also proposed a jury instruction stating that there is no duty to retreat when a person is defending an attack in a place where that person has a right to be. The State opposed this instruction on the basis that McCourt had no right to be on the property after Devous told him to leave. The court declined to give a no duty to retreat instruction. The court stated that the "intent of the instruction are homeowners, essentially, defending their property or people that come onto their property." RPat307.

Conviction and Sentence

The jury acquitted McCourt of second degree assault but convicted him of third degree assault. McCourt appeals his conviction.


A. Inferior Degree Offense Instruction

McCourt argues that the trial court erred when it declined to instruct the jury on the inferior degree offense of fourth degree assault because there was evidence from which a jury rationally could find that he did not recklessly inflict substantial bodily harm. Therefore, the evidence would have allowed the jury to convict on fourth degree assault and acquit on second degree assault. We agree.

1. Legal Principles

RCW 10.61.003 provides that a jury may find a defendant not guilty of the charged offense but guilty of an offense with an inferior degree. A party requesting an instruction on an inferior degree offense must show: "(1) the statutes for both the charged offense and the proposed inferior degree offense proscribe but one offense; (2) the information charges an offense that is divided into degrees, and the proposed offense is an inferior degree of the charged offense; and (3) there is evidence that the defendant committed only the inferior offense."

State v. Fernandez-Medina, 141 Wn.2d 448, 454, 6 P.3d 1150 (2000) (quoting State v. Peterson, 133 Wn.2d 885, 891, 948 P.2d 381 (1997)) (internal quotation marks omitted).

The third requirement is the factual component of the test. An inferior degree offense instruction must be given if the evidence would permit a jury rationally to convict only on the inferior offense and acquit on the greater offense. Fernandez-Medina, 141 Wn.2d at 456.

When determining whether the evidence was sufficient to support an inferior degree offense instruction, we must view the evidence in the light most favorable to the party that requested the instruction. Id. at 455-56. However, the evidence must affirmatively establish that the inferior degree offense was committed - "it is not enough that the jury might disbelieve the evidence pointing to guilt." Id. at 456.

We review application of the factual component of the inferior degree instruction test for an abuse of discretion. See State v. Condon, 182 Wn.2d 307, 316, 343 P.3d 357 (2015) (stating the standard of review in lesser included defense cases). However, the trial court necessarily abuses its discretion if it declines to give an inferior degree instruction when the evidence would permit a jury rationally to convict only on the inferior offense and acquit on the greater offense. See Fernandez-Medina, 141 Wn.2d at 456.

There is no dispute in this case that the legal prong of the inferior degree offense instruction test has been met. Fourth degree assault is an inferior degree offense of second degree assault. The question here is whether the factual prong has been satisfied.

2. Elements of Offenses

The State charged McCourt with second degree assault under RCW 9A.36.021(1)(a). A person is guilty of second degree assault as defined in that statute if the person "[i]ntentionally assaults another and thereby recklessly inflicts substantial bodily harm." RCW 9A.36.021(1)(a) (emphasis added). A person acts recklessly when "he or she knows of and disregards a substantial risk that a wrongful act may occur and his or her disregard of such substantial risk is a gross deviation from conduct that a reasonable person would exercise in the same situation." RCW 9A.08.010(1)(c). RCW 9A.04.110(4)(b) defines "substantial bodily harm" to mean "bodily injury which involves a temporary but substantial disfigurement, or which causes a temporary but substantial loss or impairment of the function of any bodily part or organ, or which causes a fracture of any bodily part."

The trial court gave an inferior degree instruction on third degree assault under RCW 9A.36.031(1)(f). A person is guilty of third degree assault as defined in RCW 9A.36.031(1)(f) if the person "[w]ith criminal negligence, causes bodily harm accompanied by substantial pain that extends for a period sufficient to cause considerable suffering." (Emphasis added.) A person acts with criminal negligence when "he or she fails to be aware of a substantial risk that a wrongful act may occur and his or her failure to be aware of such substantial risk constitutes a gross deviation from the standard of care that a reasonable person would exercise in the same situation." RCW 9A.08.010(1)(d).

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)3. An "assault" includes unlawfully touching another with criminal intent. State v. Hahn, 174 Wn.2d 126, 129, 271...

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