State of Washington v. Ian C. Irizarry

• Court: Court of Appeals of Washington
• Decided: January 24, 2023
• Docket: 38667-8
• Status: Unpublished

Opinion

FILED JANUARY 24, 2023 In the Office of the Clerk of Court WA State Court of Appeals Division III

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE

STATE OF WASHINGTON, ) ) No. 38667-8-III Respondent, ) ) v. ) ) UNPUBLISHED OPINION IAN C. IRIZARRY, ) ) Appellant. )

FEARING, J. — Ian Irizarry appeals from a jury finding that he committed second

degree assault with a deadly weapon for wielding a pipe and a knife at his victim. He

argues the State failed to disprove self-defense beyond a reasonable doubt. He also

assigns four errors in his statement of additional grounds. We affirm the conviction.

FACTS

A jury convicted Ian Irizarry of second degree assault stemming from an

altercation with Paul Racz. Both men were homeless.

One morning in April 2021, Paul Racz approached Ian Irizarry’s Spokane tent

while Irizarry slept, stole Irizarry’s backpack, and sprayed Irizarry in the face with bear No. 38667-8-III State v. Irizarry

mace from Irizarry’s backpack. Irizarry’s backpack included all of his possessions,

including those required for survival.

After treating his burning eyes, Ian Irizarry went to Compassionate Addiction

Treatment (CAT) to obtain food. While at CAT, Irizarry noticed Paul Racz sleeping on

Irizarry’s backpack next to a planter located on CAT’s outside premises. Irizarry grabbed

his backpack from under Racz. He looked inside the pack and noticed all of his

belongings were missing. Racz sprayed Irizarry with bear mace a second time.

Ian Irizarry dropped his backpack, left CAT’s premises, and procured a three-to-

four-foot metal pipe on a nearby construction site. Irizarry returned to CAT and

confronted Racz, who still lay near the planter. Irizarry swung the metal pipe at Racz.

Racz attempted to defend himself. Irizarry dropped the pipe, paced to and fro in front of

Racz while Racz remained on the ground, and yelled at Racz.

Ian Irizarry next drew a knife from a sheath attached to a lanyard around his neck.

He clutched the metal pipe again and swung the pipe and knife at Paul Racz. The metal

pipe struck and injured Racz’s hand. While still resting on the ground, Racz lifted

Irizarry’s backpack as if offering to return the backpack. Irizarry ripped the backpack

from Racz’s hands and flung it on the ground. Racz stood and backed away from Irizarry

as Irizarry advanced toward him with the pipe and the knife readied.

2 No. 38667-8-III State v. Irizarry

Gayle Harris, an employee of CAT, observed the altercation. At trial, Harris

described Irizarry as “angry.” Report of Proceedings (RP) at 29-30. Harris de-escalated

the hostilities. Racz was transported to the hospital in an ambulance.

Another CAT employee, Hallie Burchinal, arrived at CAT after the row between

Ian Irizarry and Paul Racz ended. Burchinal reviewed surveillance footage captured by

CAT’s security cameras at different angles. At trial, Burchinal described the footage she

viewed. According to Burchinal, the footage showed Irizarry carrying a “long object”

and Irizarry hitting Racz with the object while Racz attempted to defend himself. RP at

55. Burchinal characterized Irizarry’s behavior as being threating toward Racz. The

security footage captured a “flash of what looked like a knife” in Irizarry’s hands. RP at

60. Racz progressively retreated to avoid the attack from Irizarry.

Spokane Police Officer Seth Killian responded to the location of the altercation.

Two employees of CAT, Hallie Burchinal and Kelly Eddings, allowed Killian to view the

footage of the altercation captured by three or four security cameras. Killian testified that

the camera footage showed Ian Irizarry yelling and acting aggressively toward Paul Racz.

Racz never attacked Irizarry, but instead retreated.

After viewing the footage on the date of the confrontation, Officer Seth Killian

requested a copy of it. CAT then had available only one flash drive. Kelly Eddings

uploaded footage from only one camera onto that flash drive. Killian returned to CAT

3 No. 38667-8-III State v. Irizarry

seven to fourteen days later to obtain the remaining footage of the altercation. CAT had

deleted the remaining footage.

PROCEDURE

The State of Washington charged Ian Irizarry with one count of second degree

assault with a deadly weapon and one count of harassment. Irizarry asserted the defense

of self-defense and defense of property when wielding the knife at Paul Racz during their

altercation. Before trial, the prosecution dismissed the harassment charge.

The prosecution filed a motion to continue the first trial date due to witness

unavailability. Later the superior court ordered a competency evaluation for Ian Irizarry.

The evaluation resulted in the court ordering ninety days of inpatient competency

restoration treatment and a stay of the proceedings for completion of the treatment.

At trial, Ian Irizarry argued the State violated the confrontation clause because the

State did not present his accuser, Paul Racz, to testify. The superior court rejected this

contention because the State did not rely on any statements of Racz.

During trial, the State introduced Exhibit P-5, the security footage of the incident

Officer Seth Killian obtained the day it occurred. The State played the footage for the

jury. The footage showed the portion of the altercation between Ian Irizarry and Paul

Racz near CAT’s planter. From viewing this footage, the jury could see Irizarry swing a

metal pipe and a knife at Racz while Racz lay on the ground. The jury could also view

Irizarry yelling aggressively at Racz, Racz handing Irizarry his backpack back, and

4 No. 38667-8-III State v. Irizarry

Irizarry ripping the pack from Racz’s hands before continuing to swing the pipe and knife

at him. Finally, the jury saw Racz rise to his feet and retreat from Irizarry while Irizarry

swung the knife and pipe at Racz.

The jury found Ian Irizarry guilty of second degree assault.

LAW AND ANALYSIS

Self-Defense

On appeal, Ian Irizarry argues that the State presented insufficient evidence to

disprove he acted in self-defense and defense of property. We disagree.

When reviewing a challenge to the sufficiency of the evidence, we view the

evidence in the light most favorable to the State and ask if any rational trier of fact could

have found the essential elements of the crime beyond a reasonable doubt. State v.

Hosier, 157 Wn.2d 1, 8, 133 P.3d 936 (2006). A claim of insufficiency admits the truth

of the State’s evidence and all inferences that reasonably can be drawn therefrom. State

v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).

RCW 9A.16.020(3) codifies the defense of self-defense. The statute declares:

The use, attempt, or offer to use force upon or toward the person of another is not unlawful in the following cases: .... (3) Whenever used by a party about to be injured, or by another lawfully aiding him or her, in preventing or attempting to prevent an offense against his or her person, or a malicious trespass, or other malicious interference with real or personal property lawfully in his or her possession, in case the force is not more than is necessary.

5 No. 38667-8-III State v. Irizarry

RCW 9A.16.020(3) does little to outline the parameters of self-defense. Case law

holds that self-defense requires a showing that:

(1) the defendant subjectively feared that he was in imminent danger of death or great bodily harm; (2) this belief was objectively reasonable; (3) the defendant exercised no greater force than was reasonably necessary; and (4) the defendant was not the aggressor.

State v. Callahan, 87 Wn. App. 925, 929, 943 P.2d 676 (1997) (citations omitted).

Disproving one element of self-defense disproves the defense as a whole. State v.

Callahan, 87 Wn. App. 925, 929 (1997).

An evaluation of self-defense includes both a subjective and objective analysis.

The subjective component of this analysis requires the trier of fact to place itself in the

defendant’s shoes and view the defendant’s acts in light of all the facts and circumstances

the defendant knew when the act occurred. State v. Read, 147 Wn.2d 238, 243, 53 P.3d

26 (2002). The objective component requires the trier of fact to determine what a

reasonable person would have done if placed in the defendant’s situation. State v. Read,

147 Wn.2d 238, 243 (2002).

Before a jury can be instructed on self-defense, the defendant must produce some

evidence regarding the statutory elements of a reasonable apprehension of great bodily

harm and imminent danger. State v. Janes, 121 Wn.2d 220, 237, 850 P.2d 495 (1993).

Once the defendant accomplishes this, the burden shifts to the prosecution to prove the

absence of self-defense beyond a reasonable doubt. State v. Woods, 138 Wn. App. 191,

6 No. 38667-8-III State v. Irizarry

199, 156 P.3d 309 (2007). When the issue of self-defense is raised, the absence of self-

defense becomes another element of the offense, which the State must prove beyond a

reasonable doubt. State v. Woods, 138 Wn. App. 191, 198 (2007).

We question whether Ian Irizarry presented sufficient evidence of a reasonable

apprehension of great bodily harm and imminent danger such that the State needed to

disprove the defense beyond a reasonable doubt. Paul Racz’s theft of the backpack and

spraying of mace had ended minutes earlier. When Irizarry returned to Racz’s location

with a pipe and a knife, Racz never acted aggressively. Irizarry presented no evidence to

the contrary. Still, we analyze the appeal as if the State needed to disprove self-defense

beyond a reasonable doubt.

A reasonable jury could conclude that the State’s evidence proved beyond a

reasonable doubt that any belief of Ian Irizarry of imminent danger or great bodily harm

was not objectively reasonable, that Irizarry utilized greater force than reasonably

necessary, and that Irizarry acted as the aggressor at the time of the injury to Paul Racz.

Among other evidence, Gayle Harris testified that, when she first observed the

altercation, Racz laid on the ground. According to Harris, Racz appeared scared and

Irizarry appeared angry. The video showed Irizarry attack an unarmed Racz with a pipe

and a knife. The footage captured Irizarry lunging toward Racz. No one testified to Racz

acting aggressively.

7 No. 38667-8-III State v. Irizarry

Statement of Additional Grounds

Ian Irizary assigns four errors in his statement of additional grounds. First, the

State violated the Sixth Amendment to the United States Constitution confrontation

clause. Second, the State violated his right to speedy trial. Third, the State failed to

preserve evidence. Fourth, his counsel performed ineffectively. We reject all

assignments of error.

Ian Irizarry argues that the State violated his right to confront and cross-examine

Paul Racz by failing to present Racz at trial. We agree with the trial court’s ruling that

the proceeding does not implicate an accused’s right to confrontation unless the State

introduces out-of-court statements uttered by the absent witness. The confrontation

clause in the Sixth Amendment “is violated by admission of testimonial out-of-court

statements when the declarant does not testify at trial unless the declarant is unavailable

to testify and the defendant has had a prior opportunity to cross-examine the declarant.”

State v. Ohlson, 162 Wn.2d 1, 16, 168 P.3d 1273 (2007). Racz cites no law to the

contrary.

Ian Irizarry claims that the State violated his speedy trial right. He does not

identify whether he relies on a rule-based right or a right based on the Constitution.

Ian Irizarry’s trial was delayed for two reasons. First, a witness was unavailable.

The court does not breach any speedy trial right by granting a continuance based on the

unavailability of a witness. State v. Bebb, 44 Wn. App. 803, 813, 723 P.2d 512 (1986),

8 No. 38667-8-III State v. Irizarry

aff’d, 108 Wn.2d 515, 740 P.2d 829 (1987). Second, the court imposed a stay for Irizarry

to regain competency. A court rule excludes the time of competency treatment from the

calculation of time for trial. CrR3.3(e)(1).

Without alleging any constitutional violation, Ian Irizarry assigns error to the

State’s failure to preserve evidence because police failed to obtain all of the footage from

CAT’s security cameras. To comport with due process, the State must disclose material

exculpatory evidence to the defense and a related duty to preserve such evidence for use

by the defense. State v. Romero, 113 Wn. App. 779, 796, 54 P.3d 1255 (2002).

Nevertheless, police cannot preserve evidence that was never obtained. State v. Wasson,

54 Wn. App. 156, 161, 772 P.2d 1039 (1989). Law enforcement attempted to preserve

all footage of the altercation. A private party inadvertently erased some of the footage.

Ian Irizarry contends his trial counsel performed poorly when defending him. He

identifies no acts or omissions that allegedly constituted ineffective assistance of counsel.

CONCLUSION

We affirm Ian Irizarry’s conviction for second degree assault with a deadly

weapon.

9 No. 38667-8-III State v. Irizarry

A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.

_________________________________ Fearing, J.

WE CONCUR:

______________________________ Pennell, J.

______________________________ Staab, J.