Schindler, J.
¶ 1 MarQue Deandre Fluker shot and killed LeMaun Lancaster. The State charged Fluker with intentional murder in the second degree while armed with a firearm. The jury rejected his claim of self-defense and convicted Fluker of the lesser included crime of manslaughter in the first degree while armed with a firearm. Fluker seeks reversal. Fluker contends (1) the court violated his right to present a defense by excluding evidence that he had a permit to carry the gun and (2) the court erred by refusing to instruct the jury on manslaughter in the second degree. Because the court did not abuse its discretion by excluding the evidence and ruling the evidence did not support instructing the jury on manslaughter in the second degree, we affirm.
FACTS
¶ 2 King County Sheriff Deputy Matthew Paul responded to reports of a shooting in the parking lot at 68th Avenue South and Renton Avenue South at approximately 7:41 p.m. on August 12, 2015. Deputy Paul saw a black man, later identified as LeMaun Lancaster, on the ground surrounded by people providing first aid. Lancaster had several gunshot wounds to his body. Lancaster had been shot 8 to 10 times in the chest, abdomen, back, legs, arm, and hand.
¶ 3 While Deputy Paul put pressure on the wounds, he asked Lancaster, [D]o you know who shot you. In response, Lancaster kept saying MarQue repeatedly.
¶ 4 While waiting for medics, Detective Aaron Thompson helped apply pressure to the wounds in the left upper chest area. Lancaster was having difficulty breathing and was in and out of consciousness. Detective Thompson asked Lancaster if he could tell me who shot him. Lancaster told Detective Thompson MarQue Fluker shot him.
¶ 5 Lancaster died in the ambulance on the way to Harborview Medical Center.
¶ 6 Deputy Paul interviewed witnesses. Detective Chris Johnson collected 9 mm bullet casings from the parking lot where Lancaster was shot. Detective Thien Do obtained surveillance videos from Ezells Famous Chicken and a marijuana dispensary, GHL. The police later watched the surveillance videos.
¶ 7 The surveillance video from Ezells Famous Chicken and GHL show what happened leading up to the shooting and the shooting.
¶ 8 Lancaster, Jalen Coleman-Roy, and Joseph Tank Davison are talking while standing together in front of Ezells and GHL. Lancaster is wearing a white T-shirt and grey sweatpants; Coleman-Roy is wearing a black sweatshirt, gray sweatpants, and red shoes; and Davison is wearing a white T-shirt, dark shorts, white shoes, and a red hat. MarQue Deandre Fluker, his older brother Jerry Allen Fluker, and their nephew Jayvon Bubba Grayson drive into the parking lot near Ezells in a silver Chevrolet Impala. MarQue is wearing a Seattle Seahawks jersey with the number 24; Jerry is wearing a Portland Trailblazers jersey, black pants, and a red hat; and Grayson is wearing a green shirt and a green and blue stocking cap. The two groups stand near the curb, talking. Lancaster tries to give a flyer to Grayson. Grayson pushes Lancasters hand away and they gesture to each other.
¶ 9 Lancaster punches Grayson. Lancaster and Grayson then posture and throw punches for several minutes. After the fight moves into the parking lot, Coleman-Roy and MarQue intervene and separate Lancaster and Grayson. Coleman-Roy pushes Grayson toward the Impala. MarQue and Davison push Lancaster in the opposite direction.
¶ 10 Jerry then approaches Lancaster and pushes him in the chest. Lancaster punches Jerry in the face, knocking off his hat. MarQue has his hands at his waist. Davison is standing with his hands behind his back.
¶ 11 MarQue removes a gun from his pants and walks toward Lancaster. As Lancaster backs away, MarQue raises his left arm and points the gun at Lancaster with his right arm extended.
¶ 12 MarQue shoots Lancaster at least eight times. Lancaster doubles over, twists away from MarQue, and falls to the ground. Davison (Tank) backs away, turns, and runs away in the opposite direction.
¶ 13 As Lancaster falls to the ground, Jerry picks his hat up off the ground and MarQue walks away. Jerry walks to the Impala and gets in the driver seat. MarQue puts the gun back in his pants and paces back and forth.
¶ 14 MarQue and Grayson get in the car. Coleman-Roy runs to help Lancaster. As Jerry backs out of the parking space, MarQue jumps out of the car.
¶ 15 MarQue walks toward Lancaster but then turns back, talks to someone in the Impala, and then gets in the back seat of the car. Jerry drives away.
¶ 16 The State charged MarQue Fluker with intentional murder in the second degree while armed with a firearm and charged Jerry Fluker with felony rendering criminal assistance in the first degree. Jerry pleaded not guilty. MarQue asserted self-defense and defense of others.
¶ 17 The State called over 20 witnesses to testify during the two-week jury trial. The court admitted into evidence a number of exhibits, including an exhibit with the surveillance video from Ezells and GHL and 872 still photographs of the events leading up to the shooting and the shooting, exhibit 21.
¶ 18 Emergency medical technician Steven Anderson testified he noticed a group of gentlemen across the parking lot hanging out. Anderson was about 50 yards away and couldnt tell if they were arguing or if they were fighting. It appeared to me that it was a group of friends kind of throwing fake punches at each other. Anderson heard the voices get louder and one person, you know, hit one person, hit the other person, and then vice versa. Anderson testified that the group of men kind of converged on each other to try to separate the two that were fighting, and thats when one of them pulled out a gun. Anderson testified, Someone started shooting. Anderson said the group somewhat dispersed, it backed up, and then somebody had said, you know, why would you pull out a gun. After the shooter got into the car and drove away, Anderson went over to where the kid that was shot was on the ground. There were multiple bullet wounds in him. While waiting for the medics to arrive, Anderson applied pressure to some of the wounds.
¶ 19 Coleman-Roy testified he was friends with Lancaster and MarQue since high school and considered Grayson like my little brother.
¶ 20 The State played the exhibit with the surveillance video during the testimony of Coleman-Roy, and he described what happened. Coleman-Roy testified that Lancaster was passing out flyers for a rapper coming to town and tried to give a flyer to Grayson, but he pushed it away. Grayson started trash-talking and said the rapper is weak. At first, Lancaster and Grayson were just trash-talking to each other, just joking around with each other how friends do. But then they got face to face, and thats when it escalated and the fight broke out. After Grayson kept antagonizing Lancaster, Lancaster punched Grayson, and Grayson defended himself.
¶ 21 Coleman-Roy said Lancaster and Grayson fought for several minutes before he and MarQue intervened. Coleman-Roy testified that [o]nce they started fighting, our first instinct was to break it up. But no one immediately intervened. After [t]he situation was only escalating more and more between Grayson and Lancaster, we started to break it up. Coleman-Roy grabbed Grayson and MarQue grabbed Lancaster. Coleman-Roy said Jerry was just kind of standing off to the side and paying no attention to Lancaster and Grayson.
¶ 22 Coleman-Roy pushed Grayson toward Jerrys silver Impala that was parked nearby. As Grayson started to get in the car, he started pointing over [Coleman-Roys] shoulder. As Coleman-Roy turned around to see what Grayson was pointing at, he heard gunshots and saw Lancaster fall to the ground.
¶ 23 Coleman-Roy said Davison was just standing there and never intervened. He was scared the whole time ... to get involved. Coleman-Roy did not hear anybody say anything about a gun before hearing the gunshots. Coleman-Roy did not see anyone with a gun except MarQue. Coleman-Roy stayed with Lancaster and called 911.
¶ 24 King County medical examiner Dr. Desiree Marshall testified about the 15 actual gunshot wounds in Lancasters left upper chest, left abdomen, left back, mid-lower back, left thigh, right leg/knee, left forearm, and left hand and a graze to Lancasters right upper chest. Dr. Marshall recovered bullet fragments from his left hip bone. Dr. Marshall testified the minimum number of total separate gunshots would be eight and the highest would be ten.
¶ 25 Washington State Patrol Crime Laboratory firearm examiner Kathy Geil analyzed the several cartridge cases and the fired bullet recovered from the parking lot. Geil testified the cartridges and bullet were 9 millimeter caliber and had all been fired from the same firearm. Geil testified that rounds fired from a semiautomatic gun are fired as fast as you can pull the trigger.
¶ 26 MarQue Fluker, Bruce Johnson, and Jerry Fluker testified on behalf of the defense. MarQue testified he and Lancaster grew up in the same neighborhood and had been friends since middle school. The court admitted a recent cell phone video of MarQue and Lancaster in the car rapping together. The defense played the video for the jury.
¶ 27 MarQue testified that when he arrived at the parking lot on August 12, he gave Lancaster a handshake, like a little hug at the same time. MarQue said Lancaster asked whether MarQue had his new gun. MarQue said Lancaster knew that I had bought a new gun and stuff, and he asked me if I had it, and I was like yeah, I was like, wheres yours? Hes like my shooter got it, my friend Tank.
¶ 28 MarQue said everyone was getting along until his nephew Grayson and Lancaster started disputing about the rapper and stuff like that. Lancaster hit Grayson and they started scuffling. After they stopped fighting, MarQue grabbed Lancaster and pushed him away. But MarQue said Lancaster and Grayson were still trying to get at each other and the fight moved out to the parking lot. MarQue testified, Im grabbing [Lancaster] and pushing him away because hes saying more stuff thats, you know, more crazy like I kill you with my bare hands, talking to [Grayson]. MarQue told Lancaster, Im like, thats what youre not going to do, you know. MarQue testified, Im just pushing [Lancaster] away, because things is just getting too out of hand now, and, I guess he starts getting mad at me because I tell him, thats not what youre going to do, you know, like defending my nephew, whatever, and then just keep on pushing him.
¶ 29 MarQue admitted he did not see Lancaster with a gun. But according to MarQue, Lancaster was telling Tank to go grab his gun.... He was cussing and stuff, just like go get my shit, you know, and just cussing and saying what hes going to do to us and whatnot. MarQue testified that he was afraid. MarQue said Lancaster acted like that at a party a couple weeks before when he pulled the gun out ... on one of our friends. MarQue said he was able to eventually calm [Lancaster] down that time. MarQue said that on August 12, he was trying to calm [Lancaster] down because I didnt want things to get that far.
¶ 30 MarQue testified that while he was pushing Lancaster away from Grayson, Lancaster said that, you know, hed kill us with his bare hands, and he would take my gun and use it on me.
¶ 31 MarQue testified his older brother Jerry grabbed [Lancaster], like just chill out, you know, and then Lancaster pushed my brother. When Lancaster punched Jerry, MarQue pulled out his gun and shot Lancaster. MarQue said he was not trying to kill Lancaster, just stop him.
Q Did you shoot him?
A Yes. After he socked my brother.
Q And were you trying to kill him?
A No.
Q What were you trying to do?
A Just trying to stop him.
Q Did it happen - how fast did it happen?
A It happened so fast, like a blink of an eye.
Q Okay. What did you do when you shot him?
A Um, well, when he had punched my brother, he had said, shoot him; thats why I reacted, because when he socked my brother, he said, shoot him, so I thought, you know, you know, me and my brother is going to get shot.
¶ 32 The prosecutor played the video during the cross-examination of MarQue. MarQue testified that Lancaster threatened to kill him with his bare hands and told Davison to go get his gun.
[W]hen I first started pushing him away from everybody else, thats when he first started saying, Ill kill you with my bare hands, and thats when Im like, no, youre not. And Im still pushing him away. And he said, well, Ill take your gun from you and use it on you. And then Im like, you know, you got me fucked up; youre not going to take nothing from me, you know, and thats when he start saying - hes saying, go get my shit to Tank, and then we started walking off still, and he says it another time.
But MarQue admitted Lancaster did not try to get MarQues gun away from him.
Q ... Are we going ... to see [Lancaster] go for your gun?
A No.
¶ 33 MarQue testified that while he was trying to calm down Lancaster, he wasnt concerned about Davison. The video shows that at the point MarQue said Lancaster told Davison to go get a gun, Davison remains standing with his hands behind his back and does not have a gun.
¶ 34 MarQue testified that when he was pushing Lancaster away from Grayson, he was not concerned that Lancaster was going to kill anyone, but [t]he way [Lancaster] was talking made me concerned about what was going to happen next. MarQue testified that he decided to pull out his gun and shoot Lancaster [w]hen he socked my brother and said, shoot him.
Q Well, you knew [Lancaster] didnt have a gun in his hand?
A Not in his hand.
Q Right. And you shot him anyway?
A To stop him.
¶ 35 MarQue admitted he did not fire the gun accidentally.
Q And that day this gun that you had, it didnt go off accidentally, correct?
A Did it go off accidentally? No.
MarQue testified he had to intentionally pull the trigger each time he fired a shot at Lancaster.
Q You intentionally pulled the trigger?
A Yeah, to stop him. That was my intentions, to stop him from doing anything else.
Q And you intentionally pulled the trigger more than once?
A It happened so fast. I know it was more than once but - it was more than once.
But MarQue did not remember how many times he shot Lancaster. It was just like adrenaline. I dont remember. It just happened so fast.
¶ 36 MarQue testified that after he shot Lancaster, he wanted to stay but his brother convinced him to leave.
¶ 37 Bruce Johnson operates a mobile automobile detail business out of the parking lot near Ezells. Johnson testified he heard these youngsters engaging in a bunch of laughing and joking, but then a bunch of arguing.
¶ 38 Johnson testified that he heard Lancaster telling somebody to go get his gun.
[T]he only thing I heard about the gun, and I heard one guy say, well, you know, this - you know, if you hit me, then were going to have problems. And the other guy - I heard another guy say, I think it was the deceased guy, say, well, go get my gun, and he was telling somebody to go get his gun; I dont know who, who the person was. I dont know who. I had never saw him before. I never saw that guy before no more than just standing out there.
Johnson testified he saw Davison run away.
¶ 39 On cross-examination, Johnson admitted MarQues father was a regular customer, ... like every other day, and helped him advertise the business. Johnson admitted he had previously been convicted for giving the police false information.
¶ 40 Jerry Fluker testified that when Lancaster and Grayson began to fight, I was just standing back, because I thought they were just going to argue.
So we figured they would just dispute it out with their hands, they would fight it out, and that would be it, you know, let them fight and thought it was nothing to be really taken that serious besides, you know, somebody punched [Grayson], so he wanted to basically fight back.
We let it carry on. ... [N]othing really too damaging at the time.
¶ 41 Jerry testified that after Grayson and Lancaster stopped fighting, Lancaster was still upset and talking trash to Grayson. Jerry said Lancaster and Grayson were talking too much and he was ready to go by that point. Jerry told Grayson to get in the car while MarQue pushed Lancaster in the opposite direction. When Jerry heard Lancaster yell at Grayson, Ill kill you with my bare hands, Jerry said he had no choice but to intervene and got in between Grayson and Lancaster. Jerry testified that MarQue was trying to calm down Lancaster and said, [L]ets not go there with this, but Lancaster didnt stop.
¶ 42 When Jerry told Lancaster, [Y]oure getting out of hand, Lancaster punched him. Jerry testified that Lancaster said something about getting a gun and shoot him.
[A]s we got into each others face, ... I didnt see it coming. He just punched me dead in my face, punched me, and then he flew back, stating like something like signaling to his friend like to get his shit or he had said - well, he had said something about getting a gun or something before then .... But after he punched me, he turned to the dude, he was like, shoot, shoot him .... To shoot us.
Jerry said, [M]y brother was like, Im not playing, and he started firing.
¶ 43 The defense argued MarQue was entitled to jury instructions on self-defense and the lesser included offenses of manslaughter in the first degree and manslaughter in the second degree. [I]f youre asserting self-defense, and its an imperfect self-defense, say too much force is used, the defendant is entitled to jury instructions on the lesser included offense of manslaughter. The State agreed MarQue was entitled to a jury instruction on self-defense. The prosecutor argued that viewing the evidence in the light most favorable to MarQue, the court should instruct the jury on manslaughter in the first degree because he said he didnt intend to kill him, and a rational jury could find, I suppose, under these circumstances that he knew of and disregarded the risk that a death would occur when he fired his gun at the victim. The State argued the evidence did not support instructing the jury on manslaughter in the second degree.
[C]riminal negligence requires that you - you werent even aware of that risk, and these facts do not support that a rational jury could find it, and the four cases that I cited where the Court found that entitled to a man[slaughter] I but not a man[slaughter] II, or not entitled to either, based on a factual inquiry.
¶ 44 The court agreed to instruct the jury on self-defense. The jury instruction on self-defense states:
It is a defense to a charge of murder or manslaughter that the homicide was justifiable as defined in this instruction.
Homicide is justifiable when committed in the lawful defense of the slayer or any person in the slayers presence or company when:
(1) the slayer reasonably believed that the person slain intended to inflict death or great personal injury;
(2) the slayer reasonably believed that there was imminent danger of such harm being accomplished; and
(3) the slayer employed such force and means as a reasonably prudent person would use under the same or similar conditions as they reasonably appeared to the slayer, taking into consideration all the facts and circumstances as they appeared to him, at the time of and prior to the incident.
The State has the burden of proving beyond a reasonable doubt that the homicide was not justifiable. If you find that 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.
¶ 45 The court agreed to instruct the jury on manslaughter in the first degree. But the court ruled the evidence did not support giving an instruction on manslaughter in the second degree.
¶ 46 The jury convicted Jerry with felony rendering criminal assistance in the first degree. The jury rejected self-defense and found MarQue guilty of the lesser included offense of manslaughter in the first degree.
We, the jury, having found the defendant Marque Fluker not guilty of the crime of Murder in the Second Degree as charged, or being unable to unanimously agree as to that charge, find the defendant Guilty ... of the lesser included crime of Manslaughter in the First Degree.
By special verdict, the jury found MarQue was armed with a firearm when he committed the crime.
ANALYSIS
Evidence of Firearm Permit
¶ 47 MarQue contends the trial court violated his constitutional right to present a defense by excluding evidence that he had a permit to carry a concealed firearm.
¶ 48 A criminal defendant has a constitutional right to present a defense. Washington v. Texas, 388 U.S. 14, 23, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967) ; State v. Hudlow, 99 Wash.2d 1, 14-15, 659 P.2d 514 (1983). However, the right to present a defense is not absolute. A criminal defendant has no constitutional right to have irrelevant evidence admitted in his or her defense. Hudlow, 99 Wash.2d at 15, 659 P.2d 514.
¶ 49 We review a constitutional claim de novo as a question of law. State v. Jones, 168 Wash.2d 713, 719, 230 P.3d 576 (2010) ; State v. Jackman, 156 Wash.2d 736, 746, 132 P.3d 136 (2006). We review the decision to admit or exclude evidence for abuse of discretion. State v. McDonald, 138 Wash.2d 680, 693, 981 P.2d 443 (1999) ; State v. Darden, 145 Wash.2d 612, 619, 41 P.3d 1189 (2002). The trial court has broad discretion regarding the admission or exclusion of evidence, and the trial courts decision will not be reversed absent a manifest abuse of discretion. State v. Mee Hui Kim, 134 Wash. App. 27, 41, 139 P.3d 354 (2006) (citing State v. Swan, 114 Wash.2d 613, 658, 790 P.2d 610 (1990), cert. denied, 498 U.S. 1046, 111 S.Ct. 752, 112 L.Ed.2d 772 (1991) ).
¶ 50 Before trial, the State filed a motion to exclude evidence that MarQue had a permit to carry a concealed firearm. The State argued whether MarQue had a permit to possess a firearm was not relevant to determining whether he intentionally shot and killed Lancaster. The State argued:
[A]ny attempt to introduce such evidence would simply be an attempt to portray the defendant in a certain light i.e. as a law-abiding citizen who would not commit these crimes As such evidence is irrelevant and improper, it should be excluded.
The State moved to exclude the admission of character evidence except reputation testimony under ER 404(a) and ER 405(a).
¶ 51 The court addressed the motion at the beginning of the trial. The State argued the legality of the weapon is not relevant to self-defense and is designed to show that hes a good person, who legally has his gun; and it puts him in a good light, in an attempt to have the jury make the decision, based on that.
Its an implicit way - or, its an implied way to get that he doesnt have any criminal history, or he doesnt have any criminal convictions; which I also dont think is admissible.
This is about the actions that day, in that parking lot.
So, I do think its just an attempt to try to slip in his good character.
¶ 52 Defense counsel told the court the evidence isnt character evidence; its legality of possession of the firearm. It goes to the legality of his actions, that we believe its admissible.
¶ 53 The court agreed the evidence was not relevant but expressed concern about the perceptions of potential jurors.
Im inclined to agree with the State that it isnt probative, ordinarily. But Im also mindful of the climate of the community, and the concern about lawless gun violence.
And, although this jury is presumed to follow the Courts instructions - especially, in the last, even, year, the issues of gun violence and legality of weapons and a tendency to presume that people have weapons that they arent entitled to have - I havent quite resolved it in my mind.
And I would be happy to hear from counsel, if counsel has any other case[ ]law that they want to provide to me.
The prosecutor noted the State planned to ask the court to pose general questions to the jury about firearms. The court reserved ruling until after jury voir dire.
¶ 54 At the beginning of voir dire, the court asked general questions about whether any juror had strong feelings ... one way or the other about the use of deadly force as it pertains to self-defense, the use or possession of firearms, and allegations of a shooting. The parties questioned jurors who responded to the general questions. The jurors expressed different views. The defense did not exercise all of their peremptory challenges.
¶ 55 After the jury was selected and sworn to hear the case, the State renewed the motion to exclude evidence of the concealed firearm permit.
I wanted to readdress the issue of MarQue Flukers concealed weapons permit. My recollection during the discussion in regarding the motions in limine, the Court agreed that it wasnt relevant but was concerned about jurors assumptions theyd make. I think through voir dire its been proven to be quite the opposite. Im renewing our motion to exclude it.
The defense attorney did not disagree with the prosecutors characterization of voir dire. The defense attorney argued the court should allow the defense to introduce evidence that MarQue had a permit to carry a firearm.
¶ 56 The court granted the motion to exclude evidence that MarQue had a permit to carry a firearm. The court ruled voir dire was significant in the way that the State suggests and the evidence was not relevant.
I actually was interested, very interested, to listen to the voir dire, and I think it was significant in the way that the State suggests it. As I indicated before, it isnt relevant, but the concern was that there might be assumptions the other way. I was pleasantly surprised and pleased to hear how many jurors indicated that they could in fact put aside whether it was lawful or not, and I was a little bit discouraged to hear that at least one or two jurors said that if - that they might actually use the evidence for an improper purpose, and that was to suggest that if a person had a lawful gun, they were more likely to use it lawfully in self-defense, which obviously wouldnt be appropriate.
So I am going to grant the motion to - in limine that there not be any evidence of the possession of the permit either way.
¶ 57 On appeal, MarQue does not argue evidence of a permit to carry a firearm is relevant to either the charge of murder in the second degree, the lesser included offense of manslaughter, or self-defense. Instead, for the first time on appeal, MarQue claims the absence of the evidence creates an inference of unlawful possession and the evidence is admissible to show law-abiding character.
¶ 58 The record shows MarQue did not make these arguments below.
A party may only assign error in the appellate court on the specific ground of the evidentiary objection made at trial. Since the specific objection made at trial is not the basis the defendants are arguing before this court, they have lost their opportunity for review.
State v. Guloy, 104 Wash.2d 412, 422, 705 P.2d 1182 (1985), cert. denied, 475 U.S. 1020, 106 S.Ct. 1208, 89 L.Ed.2d 321 (1986).
¶ 59 Under RAP 2.5(a), appellate courts will not consider issues raised for the first time on appeal. State v. Kirkman, 159 Wash.2d 918, 926, 155 P.3d 125 (2007). However, a claim of error may be raised for the first time on appeal if it is a manifest error affecting a constitutional right. Kirkman, 159 Wash.2d at 926, 155 P.3d 125 (citing RAP 2.5(a)(3) ). MarQue contends the decision to exclude evidence that he had a permit to carry a concealed weapon violated his constitutional right to present a defense.
¶ 60 MarQue cannot show actual prejudice that makes the error manifest, allowing appellate review. Kirkman, 159 Wash.2d at 926-27, 155 P.3d 125. MarQues attorney expressly disclaimed any intent to introduce character evidence. The record shows the defense presented evidence that MarQue lawfully possessed the gun. During direct examination, MarQue testified that the legally owned the gun.
Q By the way, on this day, did you own a gun?
A Yes.
Q Did you legally own a gun?
[PROSECUTOR]: Objection, your Honor.
THE WITNESS: Yeah.
THE COURT: Sustained.
The State did not make a motion to strike and instruct the jury to disregard the testimony. Because the prosecutor did not move to strike, the testimony remains part of the record for the jury to consider. Swan, 114 Wash.2d at 659, 790 P.2d 610 (even when an objection is sustained, if the court does not grant a motion to strike or instruct the jury to disregard it, the testimony thus remain[s] in the record for the jurys consideration.).
Manslaughter in the Second Degree Jury Instruction
¶ 61 MarQue contends the court erred by refusing to instruct the jury on manslaughter in the second degree.
¶ 62 RCW 10.61.006 states a defendant may be found guilty of an offense the commission of which is necessarily included within that with which he or she is charged in the indictment or information. A defendant is entitled to a jury instruction on a lesser included offense if (1) each of the elements of the lesser offense is a necessary element of the charged offense and (2) the evidence in the case supports an inference that only the lesser crime was committed. State v. Workman, 90 Wash.2d 443, 447-48, 584 P.2d 382 (1978) ; State v. Fernandez-Medina, 141 Wash.2d 448, 455, 6 P.3d 1150 (2000) ; State v. Henderson, 182 Wash.2d 734, 742, 344 P.3d 1207 (2015).
¶ 63 There is no dispute the legal prong of the Workman test is met. The element of manslaughter in the second degree is a necessary element of intentional murder in the second degree. State v. Berlin, 133 Wash.2d 541, 550-51, 947 P.2d 700 (1997) ; State v. Bowerman, 115 Wash.2d 794, 806, 802 P.2d 116 (1990).
¶ 64 The factual prong of the Workman test is more particularized than that required for other jury instructions. Fernandez-Medina, 141 Wash.2d at 455, 6 P.3d 1150. In determining the factual prong of whether the evidence supports an inference that the lesser crime was committed, we review the evidence in the light most favorable to the party requesting the instruction. Fernandez-Medina, 141 Wash.2d at 455-56, 6 P.3d 1150. The evidence must raise an inference that only the lesser included/inferior degree offense was committed to the exclusion of the charged offense. Fernandez-Medina, 141 Wash.2d at 455, 6 P.3d 1150 ; Henderson, 182 Wash.2d at 748, 344 P.3d 1207. If a jury could rationally find a defendant guilty of the lesser offense and not the greater offense, the jury must be instructed on the lesser offense. Henderson, 182 Wash.2d at 736, 344 P.3d 1207.
¶ 65 We review the trial court finding under the factual prong of the Workman rule that there was no evidence to support giving an instruction on manslaughter in the second degree for abuse of discretion. Henderson, 182 Wash.2d at 743, 344 P.3d 1207. Because the factual prong turns on whether the evidence presented in the case supports an inference that only the lesser offense was committed, some evidence must be presented which affirmatively establishes the defendants theory on the lesser included offense. State v. Condon, 182 Wash.2d 307, 316, 343 P.3d 357 (2015) ; State v. Perez-Cervantes, 141 Wash.2d 468, 481, 6 P.3d 1160 (2000) (quoting State v. Fowler, 114 Wash.2d 59, 67, 785 P.2d 808 (1990) ). [I]t is not enough that the jury might disbelieve the evidence pointing to guilt. Fernandez-Medina, 141 Wash.2d at 456, 6 P.3d 1150.
¶ 66 The State charged MarQue with intentional murder in the second degree. A person is guilty of murder in the second degree when ... [w]ith intent to cause the death of another person but without premeditation, he or she causes the death of such person. RCW 9A.32.050(1)(a). RCW 9A.08.010(1)(a) defines intent-A person acts with intent or intentionally when he or she acts with the objective or purpose to accomplish a result which constitutes a crime.
¶ 67 The critical difference between the lesser included offense of manslaughter in the first degree and manslaughter in the second degree is whether the person is reckless or negligent in causing the death of another. RCW 9A.32.060(1)(a), .070(1); State v. Gamble, 154 Wash.2d 457, 467, 114 P.3d 646 (2005).
¶ 68 A person is guilty of manslaughter in the first degree when he recklessly causes the death of another person. RCW 9A.32.060(1)(a). A person acts recklessly when he knows of and disregards a substantial risk that a homicide may occur and his disregard of such substantial risk is a gross deviation from conduct that a reasonable person would exercise in the same situation. RCW 9A.08.010(1)(c).
¶ 69 A person is guilty of manslaughter in the second degree when with criminal negligence he causes the death of another person. RCW 9A.32.070(1). A person acts with criminal negligence when he fails to be aware of a substantial risk that a homicide may occur and his failure to be aware of such a substantial risk constitutes a gross deviation from the standard of care that a reasonable person would exercise in the same situation. RCW 9A.08.010(1)(d).
¶ 70 The trial court instructed the jury on manslaughter in the first degree but refused to instruct the jury on manslaughter in the second degree. The court ruled the evidence supported giving an instruction for the lesser included crime of first degree manslaughter but concluded there is no factual basis to support the giving of the manslaughter in the second degree.
¶ 71 MarQue contends he was entitled to an instruction on manslaughter in the second degree because he reasonably believed he was in imminent danger and needed to act in self-defense but negligently used more force than necessary. MarQue argues escalation of the argument between Lancaster and Grayson and the threat Lancaster made to kill us with his bare hands and to take MarQues gun from me and use it supported instructing the jury on manslaughter in the second degree. We disagree.
¶ 72 While the evidence supports finding MarQue knew of and disregarded the substantial risk of homicide when he shot Lancaster, the evidence does not support finding MarQue was unaware of a substantial risk of death.
¶ 73 No evidence shows MarQue was unaware of the risk of death when he shot Lancaster 8 to 10 times at close range. The undisputed evidence established MarQue pulled the gun from the holster in his pants, intentionally pointed the gun at Lancaster, and shot him 8 to 10 times at close range. MarQue did not testify he was unaware of the risk of death. MarQue testified he did not fire his gun accidentally. MarQue testified he intentionally shot and intentionally pulled the trigger each time he shot Lancaster with his Ruger 9 mm semiautomatic gun to stop him. MarQue said he heard Lancaster yell shoot Jerry but MarQue testified he knew Lancaster did not have a gun on him. MarQues testimony that he only wanted to stop Lancaster, not kill him, does not overcome the presumption that an actor intends the natural and foreseeable consequences of his conduct. Perez-Cervantes, 141 Wash.2d at 481, 6 P.3d 1160.
¶ 74 MarQue argues viewing the evidence in the light most favorable to him, a jury could find he acted merely negligently in using more force than necessary against Lancaster in self-defense. MarQue contends he did not know whether Lancaster had a gun and he heard Lancaster order someone to shoot his brother. MarQue cites State v. Schaffer, 135 Wash.2d 355, 957 P.2d 214 (1998), and State v. Chambers, 197 Wash. App. 96, 387 P.3d 1108 (2016). review denied, 188 Wash.2d 1010, 394 P.3d 1004 (2017), in support of his argument. Neither Schaffer nor Chambers address the legal distinction between manslaughter in the first degree and manslaughter in the second degree and are factually distinguishable.
¶ 75 In Schaffer, the defendant Schaffer testified that after leaving a club, the victim threatened to kill him. Schaffer, 135 Wash.2d at 357, 957 P.2d 214. When the victim moved his arm behind his back, Schaffer thought he was reaching for a gun. Schaffer, 135 Wash.2d at 357, 957 P.2d 214. Schaffer pulled out his gun and shot the victim five times-twice in the back and three times in the legs. Schaffer, 135 Wash.2d at 357, 957 P.2d 214. The State charged Schaffer with premeditated second degree murder. Schaffer, 135 Wash.2d at 357, 957 P.2d 214. The trial court instructed the jury on self-defense but refused to instruct the jury on manslaughter. Schaffer, 135 Wash.2d at 357, 957 P.2d 214. On appeal, the State conceded there was sufficient evidence to permit the jury to find Schaffer acted in the reasonable belief he was in imminent danger. Schaffer, 135 Wash.2d at 358, 957 P.2d 214. The court noted the concession and states the additional evidence that Schaffer shot the victim five times, including twice in the back, was sufficient to support a finding that he recklessly or negligently used excessive force to repel the danger he perceived. The jury should therefore have been instructed on manslaughter as a lesser included offense to the first degree murder alternative. Schaffer, 135 Wash.2d at 358, 957 P.2d 214.
¶ 76 In Chambers, we held the evidence supported the trial court decision to instruct the jury on the lesser included offense of manslaughter in the first degree. Chambers, 197 Wash. App. at 122, 387 P.3d 1108. Because Chambers testified that he believed the victim Hood was going to kill me, a jury could reasonably find he acted recklessly when he fired the two fatal shots directly into Hoods back after he turned away and could no longer hold the shovel. Chambers, 197 Wash. App. at 122, 387 P.3d 1108.
¶ 77 We affirm the jury conviction of manslaughter in the first degree while armed with a firearm.
WE CONCUR:
Trickey, J.
Becker, J.
For purposes of clarity, we refer to MarQue Fluker and Jerry Fluker by their first names.
Jerry appeals the conviction of rendering criminal assistance in the first degree. We address his appeal in the linked case, State v. Jerry Fluker, No. 74859-9-I, 2018 WL 4214984 (Wash. Ct. App. Sept. 4, 2018).
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