State Of Washington, Respondent V. Christopher Thomas Ackley, Appellant

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
Respondent,
v.
CHRISTOPHER THOMAS ACKLEY,
Appellant.
No. 74062-8-1
DIVISION ONE
UNPUBLISHED OPINION
FILED: 	December 19, 2016
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Leach, J. — Christopher Ackley appeals his conviction for second degree
assault with a deadly weapon. 	He challenges the trial court's refusal to instruct
the jury on self-defense and admit evidence related to self-defense. 	The record
contains no evidence that Ackley ever formed a subjective belief that he needed
to 	use force 	that would 	otherwise 	be 	unlawful. 	Because the 	record 	lacks
evidence to support this element of self-defense, Ackley was not entitled to a
self-defense jury instruction.
Because the record does not contain sufficient evidence to support an
element of Ackley's self-defense theory, any evidence offered to support other
elements of that theory is not relevant and was properly excluded.
We affirm.

No. 74062-8-1 / 2
FACTS
Substantive Facts
The following personal 	history 	led to the charged 	crime. 	Christopher
Ackley's wife and James ("Jimmy") O'Connor are cousins. 	O'Connor believed
that Ackley's wife had an affair with O'Connor's brother-in-law when Ackley was
away in California. 	O'Connor discussed his belief with his sister, his mother, and
Ackley's wife. 	Ackley was angry that O'Connor had these discussions with the
family.
On 	two 	occasions, 	Ackley 	drove 	by 	O'Connor's 	home 	and 	threw
firecrackers from the car. 	On another occasion, Ackley egged the O'Connors'
car while it was parked in their driveway.
On May 15, 2014, O'Connor and his wife were out walking. 	Ackley was
driving through the neighborhood with his daughter in the backseat when he
spotted O'Connor. 	As he drove by, Ackley yelled "Suck it, bitch." 	Ackley then
pulled his car perpendicular to the street, blocking traffic, and got out of the car.
According to O'Connor, when Ackley got out of the car he reached in his
pocket and pulled out a knife, which he pointed or waved at O'Connor. 	O'Connor
claims that Ackley walked toward 	him, saying, 	"I will slice you 	open, 	bitch."
O'Connor put his wife, Angie O'Connor, behind him and told her to run and call
911. 	O'Connor asked Ackley why he had a knife and what he was going to do

No. 74062-8-1 / 3
with it. 	When O'Connor saw Angie on 	another corner with two 	bystanders,
talking on the phone, he told Ackley that the police were on the way. 	Ackley
returned to his car and drove away.
According to Ackley, after he had yelled out the car window at O'Connor,
he saw O'Connor holding up his hands in a gesture that he interpreted to mean,
"[C]ome on back, we'll talk." Ackley testified that when he stepped out of his car,
"Jimmy O'Connor pulled his hands down rather quickly and pulled his shirt up or
started to pull his shirt up, and what flashed through my mind, I grew up in L.A.,
California, and it flashed on me that this could turn into a bad situation, and I
thought he was going to pull a gun on me."
Ackley claimed that because he felt he was in danger, he pulled out his
knife: "[M]y hand went from my pocket, and I snapped my knife out, and I held it
down by my leg." 	He claimed, "I didn't know what I was going to do with it,
but.. . my only thought was, oh my gosh, I'm in a bad situation."
Ackley claims that once he realized that O'Connor did not have a gun, he
didn't believe he needed a knife. 	So he closed his knife, walked back to the car,
and tossed the knife on the driver's seat. 	He claims he took a few steps back
toward O'Connor and asked if he wanted to talk about something and when
O'Connor asked him to leave, he did.
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No. 74062-8-1 / 4
Officer Chantelle VanDyk responded to the police call and spoke with the
O'Connors about the 	incident. 	Officer VanDyk accompanied the O'Connors
home and then went to Ackley's home to investigate. 	Ackley was exiting through
his garage door when Officer VanDyk arrived. Ackley told Officer VanDyk that he
had done something stupid, and he tried to show her threatening text messages
sent by O'Connor a few months earlier. 	Officer VanDyk refused to look at the
messages 	because 	she 	did 	not 	believe 	they 	were 	relevant 	to 	the 	assault
allegation.
Procedural Facts
The 	State charged 	Ackley 	with second 	degree 	assault with a 	deadly
weapon. 	At trial, the defense offered evidence of a threatening phone message
that Ackley received from O'Connor at least a month before the assault. 	The trial
court reserved ruling on the admissibility of the message until Ackley succeeded
in producing evidence to support a self-defense claim. 	When the court later
concluded that Ackley had not introduced sufficient evidence to support a self-
defense theory, it decided that the message was not relevant.
Ackley submitted 	proposed jury instructions on self-defense. 	The trial
court refused to give the instructions. 	It concluded,
Number one, Mr. Ackley did not use force when he held the knife
down next to his leg, and it's very difficult for me to see that my
reasonable juror could find that he was presented with a need to
protect himself simply by Mr. Connor's pulling on his shirt.
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No. 74062-8-1 / 5
And I do read RCW 9.41.270 to require a use of presently
threatened unlawful force, or use of unlawful force, and we don't
have that here. 	What we have is Mr. Ackley's testimony that Mr.
O'Connor pulled 	up 	on 	his 	shirt 	in a 	way that 	Mr. Ackley felt
demonstrated the fact that he might have a gun under there simply
because of—apparently Mr. Ackley's experience in L.A. 	So this is
not a self-defense case either for the unlawful display of a weapon
or for the Assault in the Second Degree.
The jury found Ackley guilty as charged. 	Ackley appeals.
STANDARD OF REVIEW
The standard an appellate court uses to review a trial court's refusal to
instruct the jury on 	self-defense depends on 	the trial court's 	reasons for its
decision.1 	We review a refusal based on a matter of law de novo.2 	We review a
refusal based on a factual dispute for abuse of discretion.3 	The sufficiency of
evidence to raise a claim of self-defense presents a matter of law.4 Because the
trial court found insufficient evidence supported Ackley's self-defense theory, we
review its decision de novo.
ANALYSIS
Sufficiency of the Evidence
Ackley claims the trial 	court should 	have 	instructed 	the jury on 	self-
defense. 	A defendant has a constitutional right to "'a meaningful opportunity to
1 State v. Read. 147 Wn.2d 238, 243, 53 P.3d 26 (2002).
2 State v. Walker, 136 Wn.2d 767, 772, 966 P.2d 883 (1998).
3 Walker, 136 Wn.2d at 771-72.
4 State v. Janes, 121 Wn.2d 220, 238 n.7, 850 P.2d 495 (1993).
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No. 74062-8-1 / 6
present a complete defense.'"5 	Consistent with this right, a defendant is entitled
to have the jury instructed on his theory of the case where the law and evidence
support it.6
To 	decide 	if sufficient evidence 	warrants 	instructing 	the jury on 	self-
defense, a trial court reviews the entire record in the light most favorable to the
defendant.7 	The defendant may rely on evidence that is inconsistent with his
own testimony.8 	If some evidence supports all elements of self-defense, then the
court 	must 	instruct 	the 	jury on 	self-defense.9 	Thus, 	to 	get 	a 	self-defense
instruction 	Ackley 	must 	show 	that 	the 	record 	includes 	"some 	evidence" 	to
establish the assault occurred in "circumstances amounting to defense of life and
produce some evidence he . . . had a reasonable apprehension of great bodily
harm and imminent danger."10 In determining whether a defendant has produced
sufficient evidence to show reasonable apprehension of harm, the court uses a
subjective analysis, putting itself in the shoes of the defendant and considering
all the facts and circumstances known to him.11 	The court must also determine
5 Holmes v. South Carolina. 547 U.S. 319, 324, 126 S. Ct. 1727, 164 L
Ed. 2d 503 (2006) (internal quotation marks omitted) (quoting Crane v. Kentucky.
476 U.S. 683, 690, 106 S. Ct. 2142, 90 L. Ed. 2d 636 (1986)).
6 State v. May. 100 Wn. App. 478, 482, 997 P.2d 956 (2000).
7 State v. Callahan, 87 Wn. App. 925, 933, 943 P.2d 676 (1997).
8 Callahan. 87 Wn. App. at 933.
9 Walker. 136 Wn.2d at 772-73.
10 Read. 147 Wn.2d at 242.
11 Walker, 136 Wn.2d at 772.
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No. 74062-8-1 / 7
whether the defendant's reaction was objectively reasonable.12 	We affirm the
trial court's self-defense decision because the record contains no evidence that
Ackley ever formed a subjective belief that he needed to use force that would
otherwise be unlawful.
Ackley cannot deny using force and also claim that he subjectively felt the
need to use that force. 	In State v. Aleshire.13 the Supreme Court concluded that
"[o]ne cannot deny that he struck someone and then claim that he struck them in
self-defense." 	Washington courts have repeatedly applied this reasoning.14 	To
apply Aleshire's reasoning again here, we must first consider if Ackley's own
account of his conduct constitutes use of force. 	"A person is guilty of assault in
the second degree if he or she. . . assaults another with a deadly weapon."15
Assault includes acting with the intent to create apprehension.16 The defendant's
conduct 	must 	include 	some 	physical 	action 	that 	creates 	a 	reasonable
apprehension that physical injury is imminent.17 	Displaying a weapon, without
12 Walker. 136 Wn.2d at 772.
13 89 Wn.2d 67, 71, 568 P.2d 799 (1977), abrogated on other grounds by
State v. Dowling, 98 Wn.2d 542, 656 P.2d 497 (1983).
14 Eg,, State v. Pottorff. 138 Wn. App. 343, 348, 156 P.3d 955 (2007) ("A
defendant 	asserting 	self-defense 	is 	ordinarily 	required 	to 	admit 	an 	assault
occurred."); State v. Barragan. 102 Wn. App. 754, 762, 9 P.3d 942 (2000) ("Mr.
Barragan was not entitled to a self-defense instruction because he denied the
underlying act that was the basis for all the assault counts.").
15RCW9A.36.021(1)(c).
16 State v. Elmi. 166 Wn.2d 209, 215, 207 P.3d 439 (2009).
17 State v. Maurer. 34 Wn. App. 573, 580, 663 P.2d 152 (1983).
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No. 74062-8-1 / 8
any action indicating that its use is imminent, does not constitute an assault.
Ackley testified that he took the knife out of his pocket and opened the blade but
kept it down by his side. 	The trial court refused to find that if Ackley pulled out a
knife and held it down at his side, he committed an assault. 	We agree that this
conduct would not constitute assault. 	Because Ackley does not admit to any
otherwise unlawful use of force, 	like in Aleshire, 	he is 	not entitled to a 	self-
defense instruction.
Ackley claims that sufficient evidence 	supports 	his 	self-defense claim
because O'Connor's testimony shows his use of force and his own testimony
shows a reasonable fear. 	Ackley correctly notes that the court should consider
all the 	evidence, 	including facts 	inconsistent with 	his own testimony.18 	But
considering all the evidence, Ackley still does not show lawful use of force (self-
defense) because no evidence shows he had a subjective belief that force was
needed. 	Only Ackley testified about his subjective belief. 	And, at most, Ackley
presents evidence that he believed he needed to hold the knife at his side. 	He
did not testify to any belief that he 	needed to do more to protect himself or
another. 	He did not testify to any action from which a reasonable juror could infer
this subjective belief. 	Holding a knife by one's side is not an otherwise unlawful
18 See State v. Fisher. 185 Wn.2d 836, 849, 374 P.3d 1185 (2016) (citing
Callahan. 87 Wn. App. at 933; State v. Gogolin, 45 Wn. App. 640, 643, 727 P.2d
683(1986)).
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No. 74062-8-1 / 9
use of force, and Ackley does not present any evidence that he felt the need to
take some action that would constitute self-defense. 	Thus, no evidence supports
an essential prong of his self-defense theory.
Ackley contends that case law allows a defendant to argue inconsistent
defenses. 	Ackley relies on State v. Werner.19 	But Werner does not apply to this
case. 	Cases such as Werner and State v. Callahan20 have concluded that the
defenses of accident and self-defense are not mutually exclusive as long as the
record includes evidence of both.21 But as Callahan notes, in cases like Aleshire.
the dispositive issue is not inconsistent defenses but, rather, the sufficiency of
evidence supporting the self-defense theory.22 	Like Aleshire, this case involves
the sufficiency of the evidence, 	not inconsistent defenses. 	Ackley does 	not
present sufficient evidence to show a subjective belief he needed to use force
that would otherwise be unlawful.
Even if Ackley had presented evidence to show a subjective belief, he fails
to show that this belief was reasonable under the circumstances. 	To support his
self-defense theory, Ackley offers evidence that O'Connor lifted up his shirt, that
O'Connor had left him threatening messages months earlier, and that Ackley
grew up in L.A. 	O'Connor pulling up his shirt would not cause a reasonable
19 170 Wn.2d 333, 241 P.3d 410 (2010).
20 87 Wn. App. 925, 932, 943 P.2d 676 (1997).
21 Werner. 170 Wn.2d at 337.
22 Callahan, 87 Wn. App. at 932.
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No. 74062-8-1/10
person 	in Ackley's 	shoes 	to 	believe 	he 	was 	in danger of 	imminent 	injury,
particularly because the record contains no evidence that Ackley had reason to
think that O'Connor had a gun. 	Ackley does not explain how his experiences in
L.A. 	caused 	a 	reasonable 	belief 	he 	was 	in danger. 	Further, 	evidence 	of
threatening messages from O'Connor from months earlier cannot justify a fear of
harm when Ackley initiated the encounter and the O'Connors were simply on a
walk in their neighborhood. 	We find that the evidence is not sufficient to show
that Ackley had a reasonable apprehension of harm.
Excluded Evidence
Ackley also claims that the trial court should not have excluded evidence
about prior threats by O'Connor. Ackley claims that this evidence was relevant to
his state of mind at the time of the confrontation. 	The court did not decide the
admissibility of this evidence until it had heard evidence related to Ackley's self-
defense theory. 	Later, 	the court concluded 	that Ackley had 	not 	presented
sufficient evidence of self-defense. 	"[Circumstances predating [an assault] by
weeks and months [may be] entirely proper, and in fact essential, to a proper
disposition of the claim of self-defense."23 	However, once the court determined
that Ackley had 	not 	produced 	any 	evidence to 	support an 	element of self-
defense, the evidence about prior threats was not relevant. 	Because the record
23 State v. Wanrow. 88 Wn.2d 221, 235, 559 P.2d 548 (1977).
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No. 74062-8-1 /11
does not contain sufficient evidence to support Ackley's self-defense theory, the
trial court correctly excluded evidence related to threats.
CONCLUSION
Because no evidence shows that Ackley had a subjective belief that use of
force was necessary to defend himself, 	he was not entitled to have the jury
instructed on self-defense. 	Because the record does not include at least some
evidence to support one element of Ackley's self-defense theory, no evidence
that supports the other elements is relevant. 	We affirm.
WE CONCUR:
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