State Of Washington, V Jordin M Bogar-johnson

• Court: Court of Appeals of Washington
• Decided: October 1, 2019
• Docket: 50992-0
• Status: Unpublished

Opinion

Filed Washington State Court of Appeals Division Two

October 1, 2019

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II STATE OF WASHINGTON, No. 50992-0-II

Respondent,

v.

JORDIN M. BOGAR-JOHNSON, UNPUBLISHED OPINION

Appellant.

CRUSER, J. — Jordin M. Bogar-Johnson appeals her jury trial conviction for third degree

assault. She argues that the trial court erred when it refused to instruct the jury on self-defense and

defense of property and that the trial court cannot impose a $200 filing fee as a legal financial

obligation (LFO) under the current law. Because Bogar-Johnson denied striking the victim and

there was no evidence from any source to support the self-defense instruction, the trial court did

not err when it refused to instruct the jury on self-defense, and we affirm the conviction. But we

reverse and remand for the trial court to address the LFOs under the current law.

FACTS

Following an altercation between Bogar-Johnson and Heather Englund, the State charged

Bogar-Johnson with third degree assault. The case proceeded to a jury trial. No. 50992-0-II

I. TRIAL TESTIMONY

A. STATE’S EVIDENCE

At trial, Englund, Englund’s mother, and the officer who responded to Englund’s 911 call

testified for the State.

This testimony established that Englund and her parents had arrived at Bogar-Johnson’s

apartment at 11:30 PM to confront Bogar-Johnson and her boyfriend, Travis Durham, about

sending harassing text messages to Englund’s son, who was in the hospital. According to Englund

and her mother, when they arrived, they knocked once on Bogar-Johnson’s front door.

Although no one answered the door, Englund and her parents believed they heard voices

coming from the back of the apartment, so they walked to the back of the apartment and knocked

once more on the sliding glass door. No one came to the door, but Bogar-Johnson and Durham

appeared at an upstairs window, and Bogar-Johnson asked if Englund and her parents were there

“to fight [Englund’s] son’s battles.” 1 Verbatim Report of Proceedings (VRP) at 114. When

Englund told Bogar-Johnson that they were there to talk to Durham, Bogar-Johnson started

swearing and yelling at them and threw things, including a glass votive candle holder, at Englund.

Englund and her parents returned to the front of the apartment. As they walked towards

their vehicle, Bogar-Johnson moved to the front yard, where she continued yelling and screaming

at them and calling Englund names.

Englund called 911. According to Englund, she then approached the apartment to see what

the apartment number was. Although she remained on the sidewalk in front of the apartment,

Bogar-Johnson kept insisting that Englund was “on her property.” Id. at 135. When Englund

turned to leave, Bogar-Johnson ran out of her apartment, struck England twice with what appeared

2 No. 50992-0-II

to be a pipe or a pole, and ran back into her apartment. Englund’s mother denied anyone in their

group having any “physical interaction” with Bogar-Johnson. Id. at 120.

When City of Elma Police Officer Joshua Goffena arrived, he contacted Englund and her

parents near their vehicle. Englund told Goffena that Bogar-Johnson had struck her, and the officer

observed “fresh swelling, red marks” behind Englund’s left ear. Id. at 93.

B. BOGAR-JOHNSON’S EVIDENCE

Bogar-Johnson, Durham, and Bogar-Johnson’s step-father, Chad Searls, testified for the

defense.

Bogar-Johnson testified that prior to the incident with Englund, Englund’s son had raped

her (Bogar-Johnson). Bogar-Johnson further testified that Englund’s son had been threatening and

harassing her (Bogar-Johnson) by text and social media. As part of this threatening and harassing

behavior, Englund’s son posted messages on social media that gave Bogar-Johnson’s address and

invited people to come to her “house and do all this stuff to [her].” Id. at 182. Bogar-Johnson told

Durham about her problems with Englund’s son.

Bogar-Johnson denied communicating with Englund’s son on the night of the incident.

Instead, Bogar-Johnson and Durham testified that they had been at Bogar-Johnson’s apartment

watching a movie and that they had fallen asleep when they were awoken by “pounding on the

front door.” Id. at 183. Someone also appeared to be “moving the door handle” as if they were

trying to enter the apartment. Id. at 160.

Bogar-Johnson and Durham then heard “banging” on the back door and heard Englund

screaming Bogar-Johnson’s name, yelling racial slurs, and demanding that Bogar-Johnson leave

Englund’s son alone. Id. at 160. Bogar-Johnson told Englund and her parents to get off of her

3 No. 50992-0-II

property, but she and Durham testified that Bogar-Johnson did not throw anything out of the

window.

When Englund and her parents returned to the front door, Bogar-Johnson opened the door

and screamed at them to leave. Bogar-Johnson and Durham testified that when Bogar-Johnson

and Englund were yelling at each other, Englund “lunged” at Bogar-Johnson. Id. at 163. Bogar-

Johnson denied striking or touching Englund and stated that she (Bogar-Johnson) merely stepped

back and put her arms out and then went back inside and closed the door. Durham also testified

that Bogar-Johnson did not hit Englund. But Bogar-Johnson testified that if she had touched

England, even by accident, she would have “felt like it was the necessary procedure to get her off

my property because she was not leaving, on my private property.” Id. at 198-99.

Searls testified that Bogar-Johnson had called him and told him “[t]here was something

that she considered a threat in her home,” and he arrived after the police arrived. Id. at 199.

According to Searls, Englund did not look hurt, she was not crying or bleeding, and everyone

outside appeared calm. Searls also testified that he knew Englund’s family when he was younger

and that they were racist towards African-Americans.1

II. SELF-DEFENSE AND DEFENSE OF PROPERTY INSTRUCTION

Bogar-Johnson proposed a self-defense and defense of property jury instruction. After the

parties rested, the trial court stated, “I don’t see any reason to give an instruction on self-defense

since [Bogar-Johnson] said it didn’t happen. So, do you have some statement as to that?” Id. at

207. Defense counsel responded, “Our argument would be that if for any reason they believed the

1 Bogar-Johnson is African-American.

4 No. 50992-0-II

State, that it did happen, that it would still be considered self-defense.” Id. The State argued that

there had been no showing of self-defense because Bogar-Johnson’s defense was an “outright

denial.” Id.

The trial court responded, “I don’t see any evidence of self-defense. She -- Mr. Durham

and Ms. Bogar-Johnson both testified they didn’t do anything, and so -- and so either it occurred,

or it didn’t. If it was in self-defense, they would have to say so. So, you know, there is no self-

defense here.” Id. The trial court did not instruct the jury on self-defense and defense of property.

At sentencing, the trial court commented further on the self-defense issue after Bogar-

Johnson mentioned self-defense in her sentencing allocution. The trial court stated,

Ms. Johnson, you were convicted by a jury of your peers. You took the witness stand, you testified, and there’s no basis for self-defense in this case. So apparently - I’m not sure if you or the family members you refer to understand the law of self- defense, so. . . It wasn’t justified in this case. There was some - simply no evidence of self-defense. So the only - the only issue is about whether or not the assault occurred, which you deny. But I don’t know how you can raise self-defense when you said you didn’t hit anybody. So that’s - that’s the second problem, so. . . You were on the witness stand, you denied hitting or striking anybody, so there’s no self-defense there either, so you’ve got two grounds.

VRP (Sept. 25, 2017) at 9 (emphasis added).

The jury found Bogar-Johnson guilty of third degree assault. The trial court imposed a

$200 criminal filing fee. The trial court also ordered that the LFOs would bear interest from the

date of judgment until paid in full.

Bogar-Johnson appeals her conviction and the imposition of the $200 criminal filing fee.

5 No. 50992-0-II

ANALYSIS

I. SELF-DEFENSE AND DEFENSE OF PROPERTY INSTRUCTION

Bogar-Johnson argues that the trial court erred when it refused to instruct the jury on self-

defense and defense of property. Because Bogar-Johnson denied the assault and there was no

other evidence from any source supporting the conclusion that Bogar-Johnson struck Englund in

self-defense, we disagree.

The trial court rejected Bogar-Johnson’s self-defense and defense of property instruction

because Bogar-Johnson had denied committing an assault. Whether this is a legitimate reason to

refuse to give the requested instruction is a legal issue that we review de novo. State v. Walker,

136 Wn.2d 767, 772, 966 P.2d 883 (1998).

The trial court refused to give the self-defense and defense of property instruction because

Bogar-Johnson’s complete denial was inconsistent with self-defense. A defendant can present

inconsistent defenses as long as those defenses are not mutually exclusive and there is evidence of

both defenses. State v. Callahan, 87 Wn. App. 925, 931-33, 943 P.2d 676 (1997). But self-defense

and a complete denial are mutually exclusive defenses and can preclude a self-defense argument

when there is no other evidence from any source to support a self-defense instruction. State v.

Aleshire, 89 Wn.2d 67, 71, 568 P.2d 799 (1977) (“One cannot deny that he struck someone and

then claim that he struck them in self-defense.”); State v. Barragan, 102 Wn. App. 754, 762, 9

P.3d 942 (2000). Here, Bogar-Johnson and Dunham testified that Bogar-Johnson did not strike

Englund. And Englund’s evidence was that Bogar-Johnson struck Englund without provocation.

Neither version of events would support a self-defense instruction.

6 No. 50992-0-II

Bogar-Johnson argues that under State v McCullum, 98 Wn.2d 484, 656 P.2d 1064 (1983),

State v. Werner, 170 Wn.2d 333, 337, 241 P.3d 410 (2010), and Callahan there is no “categorical

rule” preventing a defendant who has denied an assault from asserting self-defense if there is other

evidence in the record showing that an assault occurred. Br. of Appellant (Amended) at 17 (bold

omitted). But none of these cases address a situation where the defendant denied the act underlying

the assault charge and the only other evidence showed an unprovoked assault. Thus, these cases

do not show that Aleshire is not still good law when, as here, the evidence shows either an

unprovoked assault or no assault at all.

In McCullum, the court stated, “[T]here need only be some evidence admitted in the case

from whatever source which tends to prove a killing was done in self-defense.” 98 Wn.2d at 488.

But here, there is no evidence from any source that she acted in self-defense. Englund testified

that she had been standing on the sidewalk in front of the apartment and had turned to leave when

Bogar-Johnson ran out of her apartment and struck Englund with a pipe or a pole. Englund’s

mother testified that no one in her group had any physical contact with Bogar-Johnson prior to the

assault. In contrast, Durham testified that Bogar-Johnson did not hit Englund, and Bogar-Johnson

denied either touching or striking Englund. Bogar-Johnson did not even concede an accidental

touching. Rather, she testified that even if there had been accidental contact, the contact would

have been justified because “[Englund] was not leaving.” 1 VRP at 199. Thus, there was no

evidence from any source that would have supported an instruction on self-defense.

Callahan is also distinguishable. In Callahan, the defendant admitted to brandishing a gun

for defensive purposes but denied intentionally shooting the victim, asserting the gun discharged

accidentally. 87 Wn. App. at 928. Because Callahan admitted to the intentional use of force prior

7 No. 50992-0-II

to accidentally causing injury to the victim, instructions on self-defense were appropriate and the

trial court erred in declining to give them. Id. at 931-32. Here, Bogar-Johnson denied any

intentional use of force and there was no other evidence suggesting she acted in self-defense.

Werner is likewise distinguishable. Like Callahan, Werner involved a defendant who

intentionally brandished a gun for what he claimed were defensive purposes, and the gun

accidentally (according to the defendant) discharged, causing injury to the victim. 170 Wn.2d at

336. Like Callahan and unlike Bogar-Johnson, Werner admitted to the intentional use of force

prior to the accidental infliction of injury. Id. at 337-38.

The remaining cases Bogar-Johnson relies on generally hold that a defendant is entitled to

an instruction on any defense if there is sufficient evidence to support that defense. But as noted

above, there is not sufficient evidence in this case to support self-defense. As examples of the

general rule that a defendant is entitled to an instruction on a defense for which there is sufficient

evidence, Bogar-Johnson cites to Mathews v. United States, 485 U.S. 58, 63, 108 S. Ct. 883, 99 L.

Ed. 2d 54 (1988), State v. Conklin, 79 Wn.2d 805, 807, 489 P.2d 1130 (1971), and State v. Frost,

160 Wn.2d 765, 772, 161 P.3d 361 (2007).

In Mathews, the Supreme Court held that a defendant can assert the inconsistent affirmative

defense of entrapment while also denying the commission of the offense as long as the entrapment

defense was supported by sufficient evidence. 485 U.S. at 63. The defendant in Mathews was

charged with accepting a bribe in return for assisting a business with a government sponsored loan.

Id. at 61. Mathews sought to raise an entrapment defense despite refusing to admit all of the

elements, including the required mens rea, of the charged offense. Id. The Supreme Court held

that the inconsistent instruction was allowed as long as there was sufficient evidence to support

8 No. 50992-0-II

the defense. Id. at 63, 66. But, unlike here, Mathews did not deny committing the act that led to

the charges—he merely asserted that he believed the loan was a personal loan unrelated to his

official duties. Id. at 61. Because Mathews does not address whether a complete denial of the

criminal act itself can preclude an inconsistent defense, it is not helpful here.

Conklin, decided six years before Aleshire, involved a forgery conviction. Conklin asserted

an alibi defense, but also sought to have the jury instructed on the defense of intoxication. Conklin

sought to testify that if he had passed the check in question, he was “so intoxicated by the use of

drugs and lack of sleep that he was unable to form the specific intent to commit forgery.” 79

Wn.2d at 807. The court noted that intoxication negates the essential element of specific intent to

defraud and that the defendant’s capacity to form the required intent is a question for the jury. Id.

Although Conklin addressed inconsistent defenses, it did not address a complete denial of the

offense. Despite Conklin’s alibi defense, there was still evidence that a forgery had occurred, even

though Conklin presented evidence that he was not personally responsible for the forgery. In the

current case, Bogar-Johnson’s denial meant that no crime was committed at all and there was no

evidence to support a claim that Bogar-Johnson struck Englund in self-defense. Thus, Conklin

does not assist Bogar-Johnson.

In Frost, our Supreme Court addressed whether a trial court erred when it ruled that a

defendant could not argue duress in closing argument because he had not conceded criminal

liability. 160 Wn.2d at 776. But the court noted that a defendant “may be required to admit that

he committed acts constituting a crime in order to claim duress.” Id. Although Frost did not

require a defendant to admit criminal liability before asserting a duress defense, it did require that

the defendant admit to acts constituting a crime in order to assert the duress defense. Id. Similarly,

9 No. 50992-0-II

Aleshire did not require the defendant to admit to assault, but it did require that the defendant admit

to acts that amounted to assault before the defendant could claim self-defense. Thus, Frost does

not assist Bogar-Johnson.

We hold that the trial court did not err when it refused to instruct the jury on self-defense

based on Bogar-Johnson’s testimony denying that she had committed any assaultive act and the

lack of other evidence supporting a claim that Bogar-Johnson struck Englund in self-defense.2

II. LEGAL FINANCIAL OBLIGATIONS

Bogar-Johnson next argues that under the legislature’s 2018 amendments to the LFO

statutes, we must strike the $200 filing fee because she is indigent. The State does not respond to

this argument.

In 2018, our legislature amended various statutes related to the imposition of LFOs. See

generally LAWS OF 2018, ch. 269. The current version of RCW 36.18.020(2)(h) precludes the trial

court from imposing the $200 filing fee if the defendant is indigent as defined in RCW

10.101.010(3)(a) through (c). Additionally, under the current version of RCW 10.82.090, the trial

court cannot impose interest on nonrestitution LFOs. Because Bogar-Johnson’s case was not final

when the 2018 amendments took effect, she is entitled to have her LFOs and the LFO-related

provisions in her judgment and sentence reexamined under the current LFO statutes. State v.

Ramirez, 191 Wn.2d 732, 426 P.3d 714 (2018).

2 We note that if the trial court’s ruling had not focused on Bogar-Johnson’s complete denial and had, instead, been a complete rejection of all inconsistent defenses, that ruling would have been error. See Callahan, 87 Wn. App. at 933. 10 No. 50992-0-II

Accordingly, we affirm the conviction, but we remand this matter to the trial court to

reexamine the imposition of the LFOs, including but not limited to the criminal filing fee and the

interest provision in the judgment and sentence under the current law.

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

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,

it is so ordered.

CRUSER, J. We concur:

WORSWICK, P.J.

GLASGOW, J.