FILED JULY 29, 2025 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STATE OF WASHINGTON, ) No. 39750-5-III ) Respondent, ) ) v. ) UNPUBLISHED OPINION ) MICHAEL JAMES KEGLEY, ) also known as MIKE FALCON, ) ) Appellant. )
LAWRENCE-BERREY, C.J. — Michael Kegley appeals his conviction for assault in
the second degree. He argues his trial counsel was ineffective by failing to request a no-
duty-to-retreat instruction. Because trial counsel had a legitimate strategic reason for not
requesting the instruction and because the lack of the instruction did not prejudice him,
we disagree. We affirm Kegley’s conviction but remand for the trial court to strike the
victim penalty assessment.
FACTS
Background
Both Michael Kegley and Jordan Austin-Stovall were staying at a homeless
shelter. Kegley had been talking to himself on and off throughout the day. Around No. 39750-5-III State v. Kegley
midnight, Austin-Stovall heard Kegley talking to himself and utter a racial slur. Austin-
Stovall was standing near his bed and asked Kegley, about 10 feet away, to stop using
offensive language. Kegley approached Austin-Stovall, close enough to where their lips
were nearly touching. Austin-Stovall shoved Kegley to the ground. Kegley took a box
cutter from his back pocket and used it to slash Austin-Stovall underneath his left eye,
which left a disfiguring scar.
The State, by amended information, charged Kegley with assault in the second
degree and alleged that Kegley had committed the assault while armed with a deadly
weapon. After a short delay for Kegley to undergo a mental competency evaluation, the
parties tried their case to a jury.
Trial
The State called Austin-Stovall, and he testified to the facts stated above. It also
called George Simcask. Simcask testified he was working as private security at the
shelter on the night of the assault. He heard Austin-Stovall and Kegley shouting and
arguing. He saw Kegley approach Austin-Stovall and stand “in his face.” Rep. of Proc.
(RP) at 135. He then saw Austin-Stovall shove Kegley away from him. Kegley then
drew a box cutter, slashed Austin-Stovall across the face, and walked outside to smoke a
cigarette.
2 No. 39750-5-III State v. Kegley
Kegley testified in his defense. He denied he had been talking to himself or
uttering racial slurs. He said he approached and stood face to face with Austin-Stovall,
that Austin-Stovall then shoved him, and characterized the shove as an assault.
Kegley explained he had a box cutter on him, and he intentionally cut Austin-
Stovall in the face with it because he was in his “bubble.” RP at 158. He explained he
cut Austin-Stovall because his scoliosis, injured back, and age made him incapable of
fighting the younger man. He testified he had simply defended himself and that Austin-
Stovall had started the fight.
Defense counsel requested self-defense and initial aggressor jury instructions,
which were given by the trial court. The court’s instructions included the following,
which the parties discussed during their closing arguments:
INSTRUCTION NO. 12
It is a defense to a charge of assault that the force used was lawful as defined in this instruction. The use of force upon or toward the person of another is lawful when used by a person who reasonably believes that he is about to be injured in preventing or attempting to prevent an offense against the person, and when the force is not more than is necessary. The person using the force may employ such force and means as a reasonably prudent person would use under the same or similar conditions as they appeared to the person, taking into consideration all of the facts and circumstances known to the person at the time of and prior to the incident. The State has the burden of proving beyond a reasonable doubt that the force used by the defendant was not lawful. If you find that the State
3 No. 39750-5-III State v. Kegley
has not proved the absence of this defense beyond a reasonable doubt, it will be your duty to return a verdict of not guilty as to this charge.
Clerk’s Papers (CP) at 58.
INSTRUCTION NO. 13
Necessary means that, under the circumstances as they reasonably appeared to the actor at the time, (1) no reasonably effective alternative to the use of force appeared to exist and (2) the amount of force used was reasonable to effect the lawful purpose intended.
CP at 59.
INSTRUCTION NO. 14
A person is entitled to act on appearances in defending himself, if he believes in good faith and on reasonable grounds that he is in actual danger of injury, although it afterwards might develop that the person was mistaken as to the extent of the danger. Actual danger is not necessary for the use of force to be lawful.
CP at 60.
INSTRUCTION NO. 15
No person may, by any intentional act reasonably likely to provoke a belligerent response, create a necessity for acting in self-defense and thereupon use, offer, or attempt to use force upon or toward another person. Therefore, if you find beyond a reasonable doubt that the defendant was the aggressor, and that defendant’s acts and conduct provoked or commenced the fight, then self-defense is not available as a defense.
CP at 61. Defense counsel did not request a no-duty-to-retreat instruction.
4 No. 39750-5-III State v. Kegley
In its closing argument, the State argued (1) the box cutter was a deadly weapon,
(2) Austin-Stovall’s facial scar was a substantial disfigurement, (3) Kegley was the
aggressor, and (4) Kegley’s use of force was not necessary because Kegley could have
yelled out to the nearby security guard. In response, defense counsel argued (1) the box
cutter was not a deadly weapon, (2) Austin-Stovall’s facial scar was not a substantial
disfigurement, (3) Austin-Stovall was the aggressor, and (4) Kegley acted in self-defense.
The jury found Kegley guilty of assault in the second degree and found that the
box cutter was a deadly weapon. The trial court sentenced Kegley to a midrange
sentence and also imposed a $500 victim penalty assessment (VPA).
Kegley appeals to this court.
ANALYSIS
Ineffective assistance of counsel
Kegley argues he received ineffective assistance of counsel due to counsel’s
failure to request a no-duty-to-retreat instruction.
We review a claim of ineffective assistance of counsel de novo. State v.
Backemeyer, 5 Wn. App. 2d 841, 848, 428 P.3d 366 (2018). “Where the claim of
ineffective assistance is based upon counsel’s failure to request a particular jury
instruction, the defendant must show he was entitled to the instruction, counsel’s
5 No. 39750-5-III State v. Kegley
performance was deficient in failing to request it, and the failure to request the instruction
caused prejudice.” State v. Thompson, 169 Wn. App. 436, 495, 290 P.3d 996 (2012).
Here, the State concedes that Kegley was entitled to a no-duty-to-retreat
instruction but argues defense counsel was not ineffective because there was a legitimate
strategy not to request the instruction and that counsel’s failure to request the instruction
did not prejudice Kegley. We agree.
Defense counsel’s performance is deficient “if it falls ‘below an objective standard
Free access — add to your briefcase to read the full text and ask questions with AI
FILED JULY 29, 2025 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. 39750-5-III ) Respondent, ) ) v. ) UNPUBLISHED OPINION ) MICHAEL JAMES KEGLEY, ) also known as MIKE FALCON, ) ) Appellant. )
LAWRENCE-BERREY, C.J. — Michael Kegley appeals his conviction for assault in
the second degree. He argues his trial counsel was ineffective by failing to request a no-
duty-to-retreat instruction. Because trial counsel had a legitimate strategic reason for not
requesting the instruction and because the lack of the instruction did not prejudice him,
we disagree. We affirm Kegley’s conviction but remand for the trial court to strike the
victim penalty assessment.
FACTS
Background
Both Michael Kegley and Jordan Austin-Stovall were staying at a homeless
shelter. Kegley had been talking to himself on and off throughout the day. Around No. 39750-5-III State v. Kegley
midnight, Austin-Stovall heard Kegley talking to himself and utter a racial slur. Austin-
Stovall was standing near his bed and asked Kegley, about 10 feet away, to stop using
offensive language. Kegley approached Austin-Stovall, close enough to where their lips
were nearly touching. Austin-Stovall shoved Kegley to the ground. Kegley took a box
cutter from his back pocket and used it to slash Austin-Stovall underneath his left eye,
which left a disfiguring scar.
The State, by amended information, charged Kegley with assault in the second
degree and alleged that Kegley had committed the assault while armed with a deadly
weapon. After a short delay for Kegley to undergo a mental competency evaluation, the
parties tried their case to a jury.
Trial
The State called Austin-Stovall, and he testified to the facts stated above. It also
called George Simcask. Simcask testified he was working as private security at the
shelter on the night of the assault. He heard Austin-Stovall and Kegley shouting and
arguing. He saw Kegley approach Austin-Stovall and stand “in his face.” Rep. of Proc.
(RP) at 135. He then saw Austin-Stovall shove Kegley away from him. Kegley then
drew a box cutter, slashed Austin-Stovall across the face, and walked outside to smoke a
cigarette.
2 No. 39750-5-III State v. Kegley
Kegley testified in his defense. He denied he had been talking to himself or
uttering racial slurs. He said he approached and stood face to face with Austin-Stovall,
that Austin-Stovall then shoved him, and characterized the shove as an assault.
Kegley explained he had a box cutter on him, and he intentionally cut Austin-
Stovall in the face with it because he was in his “bubble.” RP at 158. He explained he
cut Austin-Stovall because his scoliosis, injured back, and age made him incapable of
fighting the younger man. He testified he had simply defended himself and that Austin-
Stovall had started the fight.
Defense counsel requested self-defense and initial aggressor jury instructions,
which were given by the trial court. The court’s instructions included the following,
which the parties discussed during their closing arguments:
INSTRUCTION NO. 12
It is a defense to a charge of assault that the force used was lawful as defined in this instruction. The use of force upon or toward the person of another is lawful when used by a person who reasonably believes that he is about to be injured in preventing or attempting to prevent an offense against the person, and when the force is not more than is necessary. The person using the force may employ such force and means as a reasonably prudent person would use under the same or similar conditions as they appeared to the person, taking into consideration all of the facts and circumstances known to the person at the time of and prior to the incident. The State has the burden of proving beyond a reasonable doubt that the force used by the defendant was not lawful. If you find that the State
3 No. 39750-5-III State v. Kegley
has not proved the absence of this defense beyond a reasonable doubt, it will be your duty to return a verdict of not guilty as to this charge.
Clerk’s Papers (CP) at 58.
INSTRUCTION NO. 13
Necessary means that, under the circumstances as they reasonably appeared to the actor at the time, (1) no reasonably effective alternative to the use of force appeared to exist and (2) the amount of force used was reasonable to effect the lawful purpose intended.
CP at 59.
INSTRUCTION NO. 14
A person is entitled to act on appearances in defending himself, if he believes in good faith and on reasonable grounds that he is in actual danger of injury, although it afterwards might develop that the person was mistaken as to the extent of the danger. Actual danger is not necessary for the use of force to be lawful.
CP at 60.
INSTRUCTION NO. 15
No person may, by any intentional act reasonably likely to provoke a belligerent response, create a necessity for acting in self-defense and thereupon use, offer, or attempt to use force upon or toward another person. Therefore, if you find beyond a reasonable doubt that the defendant was the aggressor, and that defendant’s acts and conduct provoked or commenced the fight, then self-defense is not available as a defense.
CP at 61. Defense counsel did not request a no-duty-to-retreat instruction.
4 No. 39750-5-III State v. Kegley
In its closing argument, the State argued (1) the box cutter was a deadly weapon,
(2) Austin-Stovall’s facial scar was a substantial disfigurement, (3) Kegley was the
aggressor, and (4) Kegley’s use of force was not necessary because Kegley could have
yelled out to the nearby security guard. In response, defense counsel argued (1) the box
cutter was not a deadly weapon, (2) Austin-Stovall’s facial scar was not a substantial
disfigurement, (3) Austin-Stovall was the aggressor, and (4) Kegley acted in self-defense.
The jury found Kegley guilty of assault in the second degree and found that the
box cutter was a deadly weapon. The trial court sentenced Kegley to a midrange
sentence and also imposed a $500 victim penalty assessment (VPA).
Kegley appeals to this court.
ANALYSIS
Ineffective assistance of counsel
Kegley argues he received ineffective assistance of counsel due to counsel’s
failure to request a no-duty-to-retreat instruction.
We review a claim of ineffective assistance of counsel de novo. State v.
Backemeyer, 5 Wn. App. 2d 841, 848, 428 P.3d 366 (2018). “Where the claim of
ineffective assistance is based upon counsel’s failure to request a particular jury
instruction, the defendant must show he was entitled to the instruction, counsel’s
5 No. 39750-5-III State v. Kegley
performance was deficient in failing to request it, and the failure to request the instruction
caused prejudice.” State v. Thompson, 169 Wn. App. 436, 495, 290 P.3d 996 (2012).
Here, the State concedes that Kegley was entitled to a no-duty-to-retreat
instruction but argues defense counsel was not ineffective because there was a legitimate
strategy not to request the instruction and that counsel’s failure to request the instruction
did not prejudice Kegley. We agree.
Defense counsel’s performance is deficient “if it falls ‘below an objective standard
of reasonableness.’” State v. Grier, 171 Wn.2d 17, 33, 246 P.3d 1260 (2011) (quoting
Strickland v. Washington, 466 U.S. 668, 688, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)).
There is a strong presumption that counsel’s performance was reasonable. Id. Conduct
by defense counsel that can be characterized as a legitimate strategy will not be deemed
deficient performance. State v. Breitung, 173 Wn.2d 393, 398, 267 P.3d 1012 (2011).
Kegley argues that defense counsel lacked a reasonable trial strategy by failing to
request a no-duty-to-retreat instruction. He argues the jury may have convicted him
because it believed his use of force was unlawful because the option of retreat made force
not “necessary,” as discussed in instructions 12 and 13. We disagree.
Here, the State did not argue that the option of retreat made Kegley’s use of force
unlawful. Rather, it argued that the option of yelling for help from the security guard
made Kegley’s use of force unlawful. Because the State did not focus on the option of
6 No. 39750-5-III State v. Kegley
retreat, it was a reasonable trial strategy for defense counsel not to put that option in the
jury’s mind by requesting the retreat instruction.
Additionally, we fail to see how defense counsel’s failure to request the instruction
prejudiced Kegley. Again, the State did not argue that Kegley should have retreated; it
argued that Kegley should have yelled for help from the nearby security guard.
For these reasons, we disagree with Kegley that he received ineffective assistance
of counsel.
VPA
Kegley also challenges the trial court’s imposition of the $500 VPA. Effective
July 1, 2023, the Washington Legislature amended RCW 7.68.035 to require courts to
waive the VPA for indigent individuals. RCW 7.68.035(5)(b). The trial court found
Kegley to be indigent. Kegley requests, and the State agrees, that the VPA should be
struck. We remand for the trial court to strike the VPA.
STATEMENT OF ADDITIONAL GROUNDS FOR REVIEW (SAG)
In his original SAG submission, Kegley asserts various errors without providing
any argument or authority—60-day speedy trial, kidnapping, equal rights, sexual
discrimination, racial discrimination, home invasion, and self-defense. Inadequately
argued claims of error are deemed waived. Smith v. King, 106 Wn.2d 443, 451-52, 722
P.2d 796 (1986).
7 No. 39750-5-III State v. Kegley
In his supplementary SAG submission, Kegley raises two additional claims of
error. He first argues his state and federal constitutional rights to a speedy trial were
violated. Here, the record does not show when Kegley was arraigned. Nevertheless,
Kegley’s trial occurred less than three months after the court’s finding of probable cause,
which occurs before an arraignment. Because of this, we know that less than 90 days
passed between Kegley’s arraignment and trial. Kegley fails to cite any authority to
support the notion that such a short time between arraignment and trial constitutes a
constitutional violation. Again, inadequately argued claims of error are deemed waived.
Id.
Kegley next argues his trial attorney was ineffective because counsel failed to
prepare him to testify without incriminating himself. Specifically, Kegley contends his
admission that he intended to cut Austin-Stovall caused him prejudice, and his counsel
was ineffective in failing to advise him on this issue. We disagree. Kegley’s admission
that he intended to cut Austin-Stovall was inconsequential. There was no dispute that
Kegley’s act of cutting Austin-Stovall was intentional; the only question was whether it
was done in self-defense. Because Kegley is unable to establish prejudice from his
counsel’s asserted ineffectiveness, we reject his second supplementary SAG claim.
8 No. 39750-5-111 State v. Kegley
Affirmed, but remanded to strike the VP A.
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.
l .......,.\.O,.."-• Q,...,_,._1~ ' c..~ Lawrence-Berrey, C.J. ~
WE CONCUR:
Fearing, J. > Murphy, J.