¶1(concurring)—I concur in affirming the *601second degree assault conviction of Sampson. I depart from the majority in its determination that the court's instructions adequately conveyed to the jury that the State has the burden of disproving self-defense beyond a reasonable doubt consistent with the holding of State v. Acosta, 101 Wn.2d 612, 683 P.2d 1069 (1984). Acostamakes it clear that the court's instructions must unambiguously inform the jury that the State has the burden of proof on self-defense. Acosta, 101 Wn.2d at 621. The majority apparently argues that the jury could infer, from the court's definition of assault, that the State must prove beyond a reasonable doubt that the force used was unlawful. This is not sufficient under Acosta.
¶2However, this error was harmless beyond a reasonable doubt because the evidence was insufficient to establish the assault was in self-defense, to warrant instructing the jury on self-defense. Sampson's testimony clearly indicates the gun's discharge was an accident. Self-defense implies an intentional act. State v. Kerr, 14 Wn. App. 584, 587, 544 P.2d 38 (1975). Cf. State v. Alferez, 37 Wn. App. 508, 681 P.2d 859 (1984). Moreover, there was substantial evidence that Sampson was the aggressor, thereby making self-defense unavailable to him. See State v. Currie, 74 Wn.2d 197, 443 P.2d 808 (1968). Consequently, the trial court's instructional error was not prejudicial.
¶3Review denied by Supreme Court July 26, 1985.