[No. 24917-4-III. Division Three. April 29, 2008.]
[1] Criminal Law — Trial — Instructions — Review — Standard of Review. Criminal jury instructions are reviewed de novo by an appellate court. [2] Criminal Law — Trial — Instructions — Sufficiency — Test. The instructions given in a criminal trial are sufficient if, when read as a whole, they correctly tell the jury of the applicable law, are not misleading, and permit the defendant to present his or her theory of the case. [3] Criminal Law — Trial — Instructions — Sufficiency — Considered as a Whole. In evaluating the sufficiency of the instructions given in a criminal trial, a court views the instructions in their entirety and will not parse out a single instruction to examine it in isolation. [4] Criminal Law — Trial — Instructions — Considered as a Whole — Sequence of Instructions. To read jury instructions as a whole does not mean that they must necessarily be read in any particular order. [5] Trial — Instructions — Adherence by Jury — Presumption — No Significance to Order of Instructions — Consideration of Instructions as a Whole. A jury will be presumed to follow the court's instruction that the order in which other instructions were given has no significance as to their relative importance and that the instructions should be considered as a whole. [6] Criminal Law — selfdefense — Aggressor — Instructions — No Duty To Retreat — Sequence of Instructions — Effect. A trial court does not commit error by giving a no-duty-to-retreat instruction after instructing the jury on second degree murder and the lesser-included offenses of first and second degree manslaughter and then failing to repeat the instruction after instructing the jury on first degree assault and its lesser degree offenses if the court also instructs the jury that the order in which the instructions are given has no significance to their relative importance and that the instructions should be considered as a whole. Nothing about the placement of the no-duty-to-retreat instruction prevents the defendant from arguing a selfdefense theory to any of the charges. [7] Criminal Law — Trial — Instructions — Proposed Instructions — Refusal — Review — Standard of Review. A trial court's refusal to give a criminal defendant's proposed instruction is reviewed for an abuse of discretion. [8] Criminal Law — Trial — Instructions — Proposed Instructions — Evidence in Support — Necessity. A criminal defendant has no right to an instruction that is unsupported by the evidence. [9] Criminal Law — Lesser Included Offense — Failure To Charge — In General. A criminal defendant may be convicted of a lesser included offense even if the State did not charge the lesser offense. [10] Criminal Law — Lesser Included Offense — Instruction — Necessity — Test. A criminal defendant is entitled to a lesser included offense instruction only if (1) each element of the lesser offense is a necessary element of the offense charged (the legal prong) and (2) the evidence in the case supports an inference that the defendant committed the lesser crime (the factual prong). Under the legal prong, an instruction on the lesser offense is appropriate only if the offense charged could not be committed without also committing the lesser offense. To satisfy the factual prong, the evidence must support an inference that the lesser offense was committed instead of the greater offense; i.e., the record must support an inference that only the lesser offense was committed. [11] Assault, Criminal — First Degree Assault — Elements — In General. Under RCW 9A.36.011(1)(a), first degree assault is committed when a person, with intent to inflict great bodily harm, assaults another with a firearm or any deadly weapon likely to produce great bodily harm or death. [12] Assault, Criminal — Elements — Apprehension of Harm — In General. Putting another in fear of harm constitutes an assault. [13] Reckless Endangerment — Elements — Reckless Conduct Creating Substantial Risk of Death or Serious Physical Injury. Under RCW 9A.36.050(1), reckless endangerment is commit-ted when a person recklessly engages in conduct that creates a substantial risk of death or serious physical injury to another. [14] Assault, Criminal — First Degree Assault — Elements — Intent — In General. Intent is an element of the crime of first degree assault under RCW 9A.36.011. [15] Reckless Endangerment — Elements — Intent. Intent is not an element of the crime of reckless endangerment under RCW 9A.36.050(1). What is required is recklessness. [16] Assault, Criminal — First Degree Assault — Included Offenses — Reckless Endangerment — Reckless Conduct Creating Substantial Risk of Death or Serious Physical Injury. Reckless endangerment under RCW 9A.36.050(1) is not a lesser included offense of first degree assault under RCW 9A.36.011(1)(a). [17] Assault, Criminal — Elements — Apprehension of Harm — Attempt To Injure. An attempt, with unlawful force, to inflict bodily injury upon another, or to cause apprehension of such injury, accompanied with the apparent present ability to give effect to the attempt if not prevented, constitutes an assault. [18] Assault, Criminal — First Degree Assault — Included Offenses — Unlawful Display of Weapon — Legal Basis. Unlawful display of a weapon under RCW 9.41.270(1) is a lesser included offense of first degree assault under RCW 9A.36.011(1)(a). [19] Assault, Criminal — First Degree Assault — Included Offenses — Unlawful Display of Weapon — Factual Basis. A criminal defendant is not entitled to an instruction on unlawful display of a weapon (RCW 9.41.270(1)) as a lesser included offense of a charge of first degree assault (RCW 9A.36.011(1)(a)) if the evidence shows that the defendant engaged in the intentional act of placing the victim in apprehension of harm by purposefully displaying a knife and touching the victim with the knife in an attempt to induce the victim to back off. [20] Criminal Law — Defense — Defense of Property — Instruction — Harmless Error — Claim Unsupported by Evidence. An erroneous defense of property instruction in a prosecution for an assaultive offense is harmless if the evidence does not support any defense of property claim by the defendant. [21] Criminal Law — selfdefense — Deadly Force — Fear of Death or Great Personal Injury — Necessity. It can never be reasonable to use a deadly weapon in a deadly manner absent reasonable grounds to fear death or great bodily harm. [22] Criminal Law — Evidence — Degree of Proof — Burden of Proof — Due Process. Due process of law requires proof beyond a reasonable doubt of every element of a crime before a defendant may be convicted of the crime. [23] Criminal Law — Trial — Instructions — Formula Instruction — All Elements — Necessity. A "to-convict" instruction must contain all of the elements of the crime, lest the State be relieved of its burden to prove every essential element of the crime beyond a reasonable doubt. [24] Assault, Criminal — Trial — Instructions — Multiple Definitions of "Assault" — Omission of "With Unlawful Force" From Definition of Harmful Physical Contact Assault — selfdefense Instruction — Effect. In a prosecution for assault in which the defendant presents evidence of selfdefense, the defendant is not deprived of due process of law by an instruction defining the three means of "assault" that omits the phrase "with unlawful force" in connection with assault by actual harmful physical contact if the selfdefense instruction correctly defines the "lawful" use of force as it pertains to assault and informs the jury of the State's burden of proving that the defendant's use of force "was not lawful." [25] Criminal Law — selfdefense — Instruction — Sufficiency — Test. A selfdefense instruction is sufficient if it makes the standard for selfdefense manifestly apparent to the average juror. [26] Criminal Law — selfdefense — Reasonableness of Apprehension — Subjective and Objective Test. An instruction on selfdefense must inform the jury that the selfdefense standard incorporates both subjective and objective elements: the subjective portion requires the jury to stand in the defendant's shoes and consider all of the facts and circumstances known to the defendant, while the objective portion requires the jury to determine what a reasonably prudent person similarly situated to the defendant would do. [27] Criminal Law — selfdefense — Instruction — Subjective Standard — Sufficiency — Additional Instruction — Necessity. When a selfdefense instruction makes the subjective standard pertaining to selfdefense manifestly apparent to the average juror, the defendant is not entitled to a further instruction stating that "[a] person is entitled to act on appearances in defending himself, if that person believes in good faith and on reasonable grounds that he is in actual danger of great bodily injury, although it afterwards might develop that the person was mistaken as to the extent of the danger." [28] Criminal Law — Right to Counsel — Effective Assistance of Counsel — Test. A convicted offender claiming ineffective assistance of trial counsel must show that counsel's performance was deficient and that the deficiency was prejudicial to the defense. [29] Criminal Law — Right to Counsel — Effective Assistance of Counsel — Prejudice — Test. The prejudice element of a claim of ineffective assistance of counsel requires a showing based on reasonable probability that, but for counsel's deficient performance, the result would have been different. [30] Criminal Law — Right to Counsel — Effective Assistance of Counsel — Presumption — In General. A court evaluating a claim of ineffective assistance of counsel begins with the strong presumption that counsel's performance was reasonable. [31] Criminal Law — Right to Counsel — Effective Assistance of Counsel — Trial Strategy — Tactics — In General. A legitimate strategic or tactical decision by defense counsel will not support a claim of ineffective assistance of counsel. [32] Criminal Law — Right to Counsel — Effective Assistance of Counsel — Failure To Object to Instruction — Instruction Unsupported by Evidence. Defense counsel does not render deficient performance by failing to object to a defective instruction if the defendant can make no argument on the basis of the instruction due to a lack of evidence in the record. [33] Criminal Law — Punishment — Restitution — Review — Standard of Review. A trial court's restitution order is reviewed for an abuse of discretion. An abuse of discretion occurs when the court's decision is manifestly unreasonable or is based on untenable grounds or reasons. [34] Criminal Law — Punishment — Restitution — Power of Court — Source. A trial court's authority to order restitution in a criminal proceeding is wholly statutory. [35] Criminal Law — Punishment — Restitution — Amount — Timeliness — Mandatory Nature. Under RCW 9.94A.753(1), a court ordering restitution in a criminal case generally has 180 days to determine the amount of restitution. The time limit is mandatory, although the court may continue the restitution hearing beyond the 180-day limit for good cause. [36] Criminal Law — Punishment — Restitution — Amount — Hearing — Continuance — Timeliness — Before Statutory Time Limitation Expires. A motion for a continuance of a hearing to determine the amount of a criminal restitution obligation must be made before the 180-day time limit of RCW 9.94A.753(1) has expired. [37] Criminal Law — Punishment — Restitution — Amount — Reconsideration — Timeliness. A motion for reconsideration of a trial court's determination of the amount of a criminal restitution obligation is not untimely if it is made before the trial court enters an order for the amount. [38] Criminal Law — Punishment — Restitution — Amount — Modification — Timeliness. Under RCW 9.94A.753(4), a trial court may modify the amount of a criminal offender's restitution obligation during any period of time the offender remains under the court's jurisdiction. [39] Criminal Law — Judgment — Vacation — Motion — What Constitutes — Motion for Reconsideration — Order or Judgment Not Yet Entered. A motion for reconsideration cannot be deemed a CrR 7.8 motion to vacate a judgment or order if at the time the motion is made no judgment or order has yet been entered. [40] Criminal Law — Review — Record on Appeal — Facts Outside Record — Personal Restraint Petition. When a convicted offender wishes to raise issues on appeal that require evidence or facts not in the existing trial record, the appropriate means for doing so is through a personal restraint petition. [41] Criminal Law — Trial — Misconduct of Prosecutor — Argument — Inferences From Evidence — In General. A prosecutor has wide latitude in arguing facts in evidence and in drawing reasonable inferences from such facts during closing argument. [42] Criminal Law — Trial — Misconduct of Prosecutor — Argument — Response to Defense Argument — Test. A prosecutor's otherwise improper remarks are not grounds for reversal if they are invited, provoked, or occasioned by defense counsel, and when the comments are in response to defense counsel's acts or statements, unless they go beyond the scope of an appropriate response. [43] Criminal Law — Trial — Misconduct of Prosecutor — Burden of Proof — Test. A convicted offender claiming prosecutorial misconduct has the burden of proving that the prosecutor's conduct was improper and prejudicial, and that there is a substantial likelihood the misconduct affected the jury's verdict. [44] Trial — Instructions — Adherence by Jury — Presumption — Disregarding Attorney Statements. A jury will be presumed to follow the trial court's instruction that attorney remarks, statements, and arguments are not evidence. [45] Criminal Law — Trial — Misconduct of Prosecutor — Argument — Appeal to Passion or Prejudice — Matters Outside Record. A prosecutor's closing argument should be free from appeals to passion and prejudice, and be confined to the evidence. [46] Criminal Law — Trial — Misconduct of Prosecutor — Argument — Fear and Repudiation of Criminal Groups. A prosecutor engages in misconduct by making an argument that appeals to jurors' fears and repudiation of criminal groups as a reason to convict. [47] Criminal Law — Trial — Misconduct of Prosecutor — Argument — Ethnic Cultural Matters — Prejudice. A prosecutor engages in misconduct by making an argument that invokes racial, ethnic, or religious prejudice as a reason to convict. [48] Criminal Law — Trial — Misconduct of Prosecutor — Argument — Appeal to Prejudice and Patriotism — Nation of Laws. A prosecutor does not impermissibly invoke a defendant's nationality or ethnicity or appeal to jurors' patriotic sentiments by stating in closing argument that this is a "nation of laws." Nature of Action: Prosecution for second degree murder and first degree assault while armed with a deadly weapon. Superior Court: The Superior Court for Chelan County, No. 05-1-00388-1, John E. Bridges, J., on January 23, 2006, entered a judgment on a verdict finding the defendant guilty of first degree assault while armed with a deadly weapon. The court later entered a restitution order. Court of Appeals: Holding that the trial court did not err in instructing the jury on selfdefense, that the defendant received effective assistance of counsel, and that restitution was properly ordered, the court affirms the judgment and the restitution order. Lenell R. Nussbaum-, for appellant. Gary A. Riesen-, Prosecuting Attorney, and Douglas J. Shae-, Deputy, for respondent. ¶1 STEPHENS, J. FACTS ¶2 In the early morning of July 27, 2005, Belinda Dillard and her boyfriend, Daniel Guyer, were at Trav's Restaurant and Lounge in Wenatchee, Washington. While Ms. Dillard was sitting in the bar, she noticed Mr. Prado was trying to get her attention. Ms. Dillard turned to Mr. Prado and asked him his name and where he was from. Mr. Prado said that he was from Chicago and that he was in Wenatchee on business. Ms. Dillard introduced Mr. Prado to Mr. Guyer. Mr. Prado came over to the table and shook Mr. Guyer's hand and they continued talking. When Mr. Guyer left the table to use the restroom, Mr. Prado leaned over and kissed Ms. Dillard. Ms. Dillard then told Mr. Prado that she had to find Mr. Guyer, and Ms. Dillard and Mr. Guyer left the bar. ¶3 While Ms. Dillard and Mr. Guyer were walking to their car, Ms. Dillard told Mr. Guyer that Mr. Prado had kissed her. Mr. Guyer became angry. He got into the car and drove away, leaving Ms. Dillard. Ms. Dillard started to walk home. As she crossed the street, she heard a car honk, turned around, and saw Mr. Prado. Mr. Prado asked Ms. Dillard if she wanted a ride. When Ms. Dillard said "no thank you," Mr. Prado asked again if he could take her home. 3 Report of Proceedings (RP) (Jan. 9, 2006) at 342. Ms. Dillard again declined. At this point, Ms. Dillard saw Mr. Guyer driving through the alley. ¶4 Mr. Guyer pulled up to the front of Mr. Prado's car and got out. He went over to Mr. Prado's car and banged on the driver's-side window. Mr. Prado got out of the car and the two men began pushing each other. Ms. Dillard then noticed Mr. Prado's car rolling backwards. Because neither Mr. Prado nor Mr. Guyer noticed the car rolling, Ms. Dillard reached into the car and pushed the emergency brake. When she got out of the car, Mr. Prado came back to the car, got in, and drove away. ¶5 Ms. Dillard then noticed Mr. Guyer in the middle of the street, bleeding from his chest. Mr. Guyer also had two stab wounds in his side. Mr. Guyer was taken to the hospital, where he later died. An autopsy revealed that Mr. Guyer died as a result of a stab wound to the chest. ¶6 On July 29, 2005, Mr. Prado was charged with one count of second degree murder. The information was amended to charge Mr. Prado with one count of second degree murder and one count of first degree assault with a deadly weapon. The matter proceeded to a jury trial. ¶7 At trial, Mr. Prado testified that when Mr. Guyer went to the bathroom, Ms. Dillard put her arms around him and they kissed. He said Mr. Guyer came out of the bathroom and told Ms. Dillard that it was time to leave the bar. Mr. Prado said he went to the restroom and left the bar a few minutes later. While he was stopped at a stoplight, Mr. Prado said he saw Ms. Dillard on the sidewalk. He said he rolled down his window and asked her if she needed a ride. He said that while he was talking to Ms. Dillard, Mr. Guyer pulled his car over right in front of him, got out of the car, and began banging on Mr. Prado's window. Mr. Prado said Mr. Guyer was banging on the window violently and that he was really scared. Mr. Prado said that he did not know what to do, so he pulled a knife out of the console of his car and got out of the car to intimidate Mr. Guyer. ¶8 Mr. Prado testified that he showed the knife to Mr. Guyer and told him to "calm down." 5 RP (Jan. 11, 2006) at 562. He said that a few seconds later, Mr. Guyer came toward him and they started to struggle. He said that he was afraid because Mr. Guyer was trying to take the knife out of his hand. Mr. Prado said that during the struggle, he remembered feeling the knife penetrate Mr. Guyer, but that it wasn't "too hard." 5 RP (Jan. 11, 2006) at 563. He said that he did not remember any other time when his knife stabbed Mr. Guyer during the struggle. He said that once he was able to escape Mr. Guyer's grasp, he ran toward his car and drove home. He said he took the knife and threw it in the garbage behind his house. ¶9 At the conclusion of the testimony, the court gave the following instructions to the jury: Instruction No. 22: It is lawful for a person who is in a place where that person has a right to be and who has reasonable grounds for believing that he is being attacked to stand his ground and defend against such attack by use of lawful force. The law does not impose a duty to retreat. Clerk's Papers (CP) at 78. Instruction No. 23: A person commits the crime of assault in the first degree when, with intent to inflict great bodily harm, he or she assaults another with any deadly weapon. CP at 79. Instruction No. 24: To convict the defendant of the crime of assault in the first degree as charged in count II of the information, each of the following elements of the crime must be proved beyond a reasonable doubt: (1) That on or about the 27th day of July, 2005, the defendant assaulted Daniel Guyer; (2) That the assault was committed with a deadly weapon; (3) That the defendant acted with intent to inflict great bodily harm; and (4) That the acts occurred in the State of Washington. If you find from the evidence that each of these elements has been proved beyond a reasonable doubt, then it will be your duty to return a verdict of guilty. On the other hand, if, after weighing all of the evidence, you have a reasonable doubt as to any one of these elements, then it will be your duty to return a verdict of not guilty. CP at 80. Instruction No. 25: An assault is an intentional touching, striking, or cutting of another person that is harmful or offensive. A touching, striking or cutting is offensive if the touching, striking or cutting would offend an ordinary person who is not unduly sensitive. An assault is also an act, with unlawful force done with the intent to create in another apprehension and fear of bodily injury, and which in fact creates in another a reasonable apprehension and imminent fear of bodily injury even though the actor did not actually intend to inflict bodily injury. CP at 81. Instruction No. 29: A person commits the crime of assault in the second degree when, under circumstances not amounting to assault in the first degree, he assaults another with a deadly weapon. CP at 85. Instruction No. 30: To convict the defendant of the crime of assault in the second degree, each of the following elements of the crime must be proved beyond a reasonable doubt: (1) That on or about the 27th day of July, 2005, the defendant: (a) intentionally assaulted Daniel Guyer and thereby recklessly inflicted substantial bodily harm; or (b) assaulted Daniel Guyer with a deadly weapon; and (2) That the acts occurred in the State of Washington . . . . If you find from the evidence that element (2) and either element (1)(a) or (1)(b) have been proved beyond a reasonable doubt, then it will be your duty to return a verdict of guilty. Elements (1)(a) and (1)(b) are alternatives and only one need be proved. On the other hand, if after weighing all of the evidence, you have a reasonable doubt as to any one of these elements, then it will be your duty to return a verdict of not guilty. CP at 86. Instruction No. 32: A person commits the crime of assault in the third degree when, under circumstances not amounting to assault in either the first or second degree, he, with criminal negligence, causes bodily harm to another person by means of a weapon or other instrument or thing likely to produce bodily harm. CP at 88. Instruction No. 33: To convict the defendant of the crime of assault in the third degree, each of the following elements of the crime must be proved beyond a reasonable doubt: (1) That on or about the 27th day of July, 2005, the defendant caused bodily harm to Daniel Guyer[;] (2) That the physical injury was caused by a weapon or other instrument or thing likely to produce bodily harm; (3) That the defendant acted with criminal negligence; and (4) That the acts occurred in the State of Washington. If you find from the evidence that each of these elements has been proved beyond a reasonable doubt, then it will be your duty to return a verdict of guilty. On the other hand, if, after weighing all of the evidence, you have a reasonable doubt as to any one of these elements, then it will be your duty to return a verdict of not guilty. CP at 89. Instruction No. 35: It is a defense to a charge of assault in the first degree as well as the lesser included offense of assault in the second and third degree 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 or a malicious trespass or other malicious interference with real or personal property lawfully in that person's possession, 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 the State has not proved the absence of this defense beyond a reasonable doubt, it will be your duty to return a verdict of not guilty. CP at 91. The jury found Mr. Prado not guilty of second degree murder but guilty of first degree assault. The jury also returned a special verdict determining that Mr. Prado was armed with a deadly weapon. ¶10 On January 23, 2006, the court sentenced Mr. Prado to 93 months plus 24 months for the deadly weapon enhancement for a total of 117 months' incarceration. A restitution hearing was scheduled for March 20. ¶11 At the restitution hearing, the court indicated that it would order restitution in the amount of $5,802.92 to reimburse the Crime Victim's Compensation Fund and $2,576.00 for Mr. Guyer's headstone and cemetery plot. Mr. Guyer's mother also requested restitution to cover her travel and lodging expenses for the trial, as well as restitution to cover child support for Mr. Guyer's child and to pay his bank loans. The court stated that it was unsure whether it could order restitution for such expenses and indicated that a letter would follow with the court's decision. ¶12 On March 24, 2006, the court issued its letter decision on restitution. The court ordered restitution to be paid by Mr. Prado in the amount of $5,802.92 to the Crime Victim's Compensation Fund. The court, however, denied restitution to cover the costs of Mr. Guyer's headstone, cemetery plot, child support, bank loans, and Mr. Guyer's mother's trial travel expenses. ¶13 On May 15, the court held a second restitution hearing. The State informed the court that it had just presented defense counsel with a recently decided case in reference to the court's denial of restitution for Mr. Guyer's headstone and cemetery plot. The State also requested an additional restitution amount of $2,825.29 for Mr. Guyer's emergency room medical expenses. Defense counsel then requested to continue the hearing. The hearing was continued to June 14. ¶14 On June 14, the court heard argument from counsel on the State's motion for payment of additional medical expenses and the State's motion for reconsideration regarding restitution for Mr. Guyer's headstone and cemetery plot. The court granted the State's motion for reconsideration and ordered restitution in the amount of $5,802.92 to the Crime Victim's Compensation Fund, $2,825.29 for Mr. Guyer's medical costs, $1,500.00 for a headstone, and $1,076.00 for the cemetery plot. A restitution order was entered that day. This appeal follows. ANALYSIS A. Jury Instructions ¶17 Although it appears that there is no authority directly on this question, the governing principle is that jury instructions will satisfy the demands of a fair trial if, when read as a whole, they correctly tell the jury of the applicable law, are not misleading, and permit the defendant to present his theory of the case. Id. The court views the instructions in their entirety and will not parse out a single instruction to examine it in isolation. In re Pers. Restraint of Benn, 134 Wn.2d 868, 922, 952 P.2d 116 (1998). The phrase "read as a whole" does not suggest that the judge must read the instructions in any particular order. Id. ¶18 Here, the court instructed the jury, pursuant to 11 Washington Practice, Washington Pattern Jury Instructions: Criminal 1.02, at 9 (1994) (WPIC): The order in which these instructions are given has no significance as to their relative importance. The attorneys may properly discuss any specific instructions they think are particularly significant. You should consider the instructions as a whole and should not place undue emphasis on any particular instruction or part thereof. CP at 118. Juries are presumed to follow the court's instructions. State v. Johnson, 124 Wn.2d 57, 77, 873 P.2d 514 (1994). The instructions accurately stated applicable law identifying that Mr. Prado had no duty to retreat and were not misleading. Moreover, nothing in the placement of instruction 22 prevented Mr. Prado from arguing his theory of the case that he acted in selfdefense. We find no error. ¶19 Mr. Prado next contends the court erred by failing to give his proposed instructions to the jury on reckless endangerment and the unlawful display of a weapon. He contends that these instructions should have been given to the jury because they are lesser-included offenses to first degree assault. ¶21 Under the legal prong, a defendant is entitled to an instruction on the lesser offense only if the charged crime could not be committed without also committing the lesser offense. Id. "To satisfy the factual prong of Workman, the evidence must support an inference that the lesser offense was committed instead of the greater offense." State v. Karp, 69 Wn. App. 369, 376, 848 P.2d 1304, review denied, 122 Wn.2d 1005 (1993). In other words, "the record must support an inference that only the lesser offense was committed." Id. ¶23 First degree assault occurs when a person, with intent to inflict great bodily harm, assaults another with a firearm or any deadly weapon likely to produce great bodily harm or death. RCW 9A.36.011(1)(a). Putting the victim in fear of harm is a type of assault. State v. Wilson, 125 Wn.2d 212, 218, 883 P.2d 320 (1994). Reckless endangerment occurs when a person recklessly engages in conduct that creates a substantial risk of death or serious physical injury to another. RCW 9A.36.050(1). First degree assault requires intent, while reckless endangerment requires recklessness. These offenses do not have identical elements. Because a person who commits reckless endangerment does not also commit all of the acts necessary for commission of first degree assault, each element of the crime of reckless endangerment is not a necessary element of the offense of first degree assault. Mr. Prado could commit one crime without committing the other, so the legal prong of the lesser included test was not met. The court did not err by refusing to give a reckless endangerment instruction. ¶26 Here, the record does not support an inference that Mr. Prado violated only the unlawful display statute. The evidence established that Mr. Prado got the knife out of his car's console while Mr. Guyer was banging on his window. Mr. Prado then stepped out of the car with the knife "to intimidate" Mr. Guyer, because he did not want Mr. Guyer to approach him or his vehicle. He testified that he felt more secure outside of his car with the knife than being inside of the car. Mr. Prado displayed the knife to Mr. Guyer and told him to "calm down." 5 RP (Jan. 11, 2006) at 562. When Mr. Prado and Mr. Guyer began to struggle, Mr. Prado said it was his intention "to touch him with the knife so that he would – would draw away from me." 5 RP (Jan. 11, 2006) at 585. This evidence supports an inference that an assault was committed because Mr. Prado engaged in an intentional act to place Mr. Guyer in apprehension of harm. While Mr. Prado's conduct also supports an inference that he violated the unlawful display statute, the evidence does not support an inference that only that statute was violated. Mr. Prado thus was not entitled to the lesser included offense instruction. ¶27 Mr. Prado contends that the court erred by giving instruction 35 to the jury. ¶28 In Bland, 128 Wn. App. at 513, the defendant was charged with second degree assault after he chased a guest around his house and into a bedroom with a gun. The jury was instructed on the law of defense of property as follows: The use or attempt to use force upon or toward the person of another is lawful when used or attempted by a person who reasonably believes that he is about to be injured in preventing or attempting to prevent an offense against the person or a malicious trespass or other malicious interference with real or personal property lawfully in that person's possession, and when the force is not more than is necessary. Id. at 514. The jury convicted the defendant as charged. Id. at 513. ¶29 On appeal, the defendant argued, among other things, that the jury was improperly instructed on the law of the defense of property. Id. The court found error in the instruction, because the conjunction "or" should have been inserted between the word "injured" and the phrase "in preventing." The court found that without the conjunction, the instruction "could be understood to require a finding that a defendant reasonably believed that he was about to be injured in preventing a malicious trespass." Id. at 514 (emphasis added). Because such belief is not a requirement for defense of property, the court held that the instruction confused the distinction between selfdefense and defense of property and was reversible error. Id. ¶31 Mr. Prado next appears to contend that instructions 23, 24, 25, 29, 30, 32, and 33 on assault were erroneous because they omitted either any reference to selfdefense or to the requirement of unlawful force. He argues that because the court's instructions defining second degree murder and first and second degree manslaughter included a statement concerning the defense of accident, the court was also required to include defenses in the assault instructions. ¶33 Here, instructions 23, 24, 29, 30, 32, and 33 were consistent with the pattern jury instructions on assault and were accurate statements of the law. WPIC 35.01, at 367 (2d ed. 1994); WPIC 35.01, at 198 (Supp. 2005); WPIC 35.02, at 199 (Supp. 2005); WPIC 35.10, at 379 (2d ed. 1994); WPIC 35.10, at 211 (Supp. 2005); WPIC 35.12, at 384 (2d ed. 1994); WPIC 35.12, at 215 (Supp. 2005); WPIC 35.20, at 400 (2d ed. 1994); WPIC 35.20, at 230-31 (Supp. 2005); WPIC 35.22, at 405 (2d ed. 1994); WPIC 35.22, at 235 (Supp. 2005); RCW 9A.36.011(1)(a); RCW 9A.36.021; RCW 9A.36.031. ¶35 This was a selfdefense case and instruction 25 contained an incomplete definition of "assault" because the first paragraph defining "assault" omitted the phrase "with unlawful force" as recommended by the current pattern instructions and case law. However, instruction 35, the court's selfdefense instruction, correctly defined the "lawful" use of force as it pertained to first, second, and third degree assault and also informed the jury of the State's burden of proving Mr. Prado's use of force "was not lawful." Thus, the selfdefense standard was made "manifestly apparent" to the average juror. State v. Walden, 131 Wn.2d 469, 473, 932 P.2d 1237 (1997); State v. Allery, 101 Wn.2d 591, 595, 682 P.2d 312 (1984). The constitutional standard was met, and we find no reversible error. ¶36 Mr. Prado next contends the court erred by failing to give his proposed instruction E on selfdefense. He argues that without this instruction, the jury was unable to evaluate his claim of selfdefense based on his subjective perception of the events. Mr. Prado proposed the following instruction: A person is entitled to act on appearances in defending himself, if that person believes in good faith and on reasonable grounds that he is in actual danger of great bodily injury, although it afterwards might develop that the person was mistaken as to the extent of the danger. Actual danger is not necessary for homicide to be justifiable. CP at 106. ¶38 Here, instruction 35 was consistent with the pattern instruction on selfdefense. WPIC 17.02, at 196 (2d ed. 1994). WPIC 17.02 was previously redrafted to take into account the subjective factors required by our Supreme Court in Allery, 101 Wn.2d at 595. WPIC 17.02 cmt. (2d ed. 1994). WPIC 17.02 and instruction 35 both contain almost the same language required by Allery and correctly state the subjective standard pertaining to selfdefense. Thus, it was not error for the court to refuse Mr. Prado's proposed selfdefense instruction. B. Ineffective Assistance of Counsel ¶39 Mr. Prado contends he was denied effective assistance of counsel. He argues instruction 35 was defective and that defense counsel should have been aware of the decision in Bland, 128 Wn. App. at 516-17, which found the instruction prejudicial on the issue of defense of property. C. Restitution Order ¶45 Mr. Prado first argues the State's motion for reconsideration on the amount of restitution was untimely. He asserts the restitution hearing was conducted on March 20, 2006. The court entered its decision on March 24, but the State did not seek reconsideration until June 14. ¶47 Mr. Prado next contends that the State's motion for reconsideration failed to comply with CrR 7.8(c)(1), because the State did not file a written motion or written affidavit in support of its motion. He argues that the State's failure to do so voids the restitution order. D. Statement of Additional Grounds for Review ¶49 Mr. Prado first contends the prosecutor committed misconduct. He challenges the following passages from the closing arguments: The safest place to be that evening was inside of that car. Nothing happened to that window. There was nothing that took place that broke the window. 6 RP (Jan. 12, 2006) at 641. Takes the blade out and he says – his statement is to intimidate him. I got out of the car because I wanted to intimidate him. I got – I wanted him out of the proximity. I wanted to intimidate him. Did he have any weapons? I saw no weapons. Did he have anything in his hand? I saw nothing in his hand. Mr. Prado is now the aggressor in this situation. Mr. Prado is the person who's got the knife and he points it up at him and he says at one point in his direct testimony, I believe, I just wanted to touch him with the knife. I just wanted to touch him with it. I wanted to get him out. I wanted to intimidate him. Was it an accident? Yes, unfortunately, I believe he says. It's not selfdefense. It's not selfdefense if it's an accident. 6 RP (Jan. 12, 2006) at 642. And I would hope that you would ask yourself, should a person be able to go out with their girlfriend or friend, have a few drinks, hopefully not drink too much, be able to drive away without being – and she can walk home – and everybody doesn't get along all the time – without something like this happening. In America for 200 years, we've been a nation of laws. We're not a nation of men. If we become a nation of men, then what we become are people that can do whatever they want whenever they want. Here we're a nation of laws. We're governed by the laws. There's an instruction that talks about that. We are a people that are governed by laws. 6 RP (Jan. 12, 2006) at 655-56. ¶52 Second, Mr. Prado contends the prosecutor committed misconduct when he made statements invoking "nationalistic emotions." Mr. Prado argues that these statements were an attempt to separate the prosecutor and jury from Mr. Prado, who was a foreigner and did not speak the English language. Mr. Prado relies on State v. Perez-Mejia, 134 Wn. App. 907, 143 P.3d 838 (2006) in support of his argument. ¶54 In Perez-Mejia, 134 Wn. App. at 909, the defendant was convicted of one count of first degree murder. On appeal, he argued that the prosecutor committed misconduct during closing arguments when the prosecutor stated, among other things, that the jury should [s]end a message to Scorpion, to other members of his gang . . . and to all the other people who choose to dwell in the underworld of gangs. That message is we had enough. We will not tolerate it any longer. That we as citizens of the State of Washington and the United States of America, we have the right to life, liberty and the pursuit of happiness and we will no longer allow those who choose to dwell in the underworld of gangs to stifle our rights. And that message begins now. It begins now by finding that the defendant was involved in the death of Ms. Emmitt. That message can be sent by holding the defendant responsible for his actions, for his involvement in the gang. For him being an accomplice to his other gang members in the death of Ms. Margaret Emmitt. Id. at 917 (second alteration in original) (footnote omitted). ¶55 In reversing the defendant's conviction, the court found that the prosecutor's argument improperly invoked the juror's patriotic sentiments and cast the defendant "as an oppressor of the inalienable rights listed in our nation's Declaration of Independence." Id. at 918. The court stated that the prosecutor's statement constituted an appeal to prejudice and patriotism and that it "needlessly injected the sensitive issues of nationality and ethnicity into a case where the defendant and his associates were alleged members of a Central American gang, many of whom, including [the defendant], required Spanish language interpreters during the trial." Id. CONCLUSION ¶57 We affirm the conviction of Mr. Prado for one count of first degree assault. KULIK, A.C.J., and BROWN, J., concur.