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Appellate court hears dispute over self‑defense jury instruction in State v. Vassalo
Summary
At a Kamenia County Division 2 hearing, appellant counsel Ariana Downing argued a self‑defense jury instruction improperly required actual injury and prevented Mr. Vassallo from presenting a proportional‑force defense; the state, represented by Derek Scheuer, said the instruction correctly reflected Washington law and pointed to the record to argue the force was disproportionate.
A Kamenia County Division 2 panel heard oral argument in State v. Vassalo over whether a jury instruction on self‑defense misstated Washington law and whether any instructional error prejudiced the defendant.
Appellant counsel Ariana Downing told the court that the instruction the trial court used (referred to in the record as instruction 17‑02 or similar) conflated the statutory term "injury" with a broader phrase, "offense against a person," and that conflation prevented the jury from considering whether Mr. Vassalo could lawfully use reasonable, proportionate force in response to an offensive but non‑injurious contact. Downing said the instruction is a secondary source that does not control statutory meaning and that, as written, it cut off the jury before it could assess proportionality.
The argument matters because it goes to the standard appellate courts use to review jury instructions and because it affects whether the defendant was allowed to present his theory of defense at trial. Downing said the statutory language has multiple terms that a court must read to have distinct meanings and that the jury here never reached the question of whether the force used was proportionate because the instructions limited the inquiry to situations involving injury.
State counsel Derek Scheuer responded that the instruction accurately reflected Washington law and that self‑defense requires a defendant to reasonably believe he faced imminent physical harm and to use no more force than necessary. Scheuer emphasized facts in the trial record — which the state summarized as a minor touching by the victim followed by a forceful shove by Mr. Vassallo that sent the victim into a wall — and argued that, regardless of fine grammatical readings, the evidence showed a disproportionate response. The state also defended the trial court's use of a first‑aggressor instruction and said defense counsel was not ineffective for proposing the instructions used at trial.
Judges on the panel questioned both sides about two related issues: whether appellate review should decide proportionality on the record (including video) rather than remanding for jury consideration, and how to interpret the statute's family/household definitions (the parties disputed whether a "step‑grandchild" relationship fits the statute's illustrative examples). One judge asked whether "offense against a person" is a defined term; Downing said it is not defined in the instruction and urged the court to read the statute's terms distinctly. Scheuer answered that courts rarely see prosecutions for very minor, non‑injurious contacts and that Washington case law requires a reasonable belief of imminent injury for self‑defense to be justified.
Downing also argued the state introduced evidence under ER 404(b) to portray Mr. Vassallo as having a motive to act unreasonably, and she said those admissions and the instruction together prejudiced the defense. Scheuer countered that Mr. Vassallo's own admissions — text messages and courtroom conduct the state described as showing anger and motive — rendered such evidence cumulative and that any challenge to the 404(b) ruling did not produce prejudice sufficient to reverse.
The appellant reserved remaining time and later resumed briefly to press the statutory‑construction point about the domestic‑violence aggravator and whether the examples in the statute should be read narrowly in light of the rule of lenity. The court announced it would consider the remainder of its calendar without oral argument and concluded the session.
The transcript contains inconsistent spellings of the defendant's name (appearing variously as "Fasalo," "Vassalo," and other variants); counsel introduced him in court as "Mr. Vassalo," and this article follows that form. The transcript also references the Revised Code of Washington (RCW) and a pattern jury instruction cited in the record; the court will resolve whether the instruction or its application requires reversal or remand when it issues its written decision.
Next step: the appellate panel will issue a written opinion; no final ruling was announced at the hearing.
