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DO NOT CITE. SEE GR 14.1(a).
Court of Appeals Division II
State of Washington
Opinion Information Sheet
| Docket Number: |
40629-2 |
| Title of Case: |
State Of Washington, Respondent V Thades Sherman Rich, Ii, Appellant |
| File Date: |
05/08/2012 |
SOURCE OF APPEAL
----------------
| Appeal from Clallam Superior Court |
| Docket No: | 09-1-00347-4 |
| Judgment or order under review |
| Date filed: | 04/21/2010 |
| Judge signing: | Honorable S Brooke Taylor, Kenneth Williams |
JUDGES
------
| Authored by | J. Robin Hunt |
| Concurring: | Joel Penoyar |
| Jill M Johanson |
COUNSEL OF RECORD
-----------------
Counsel for Appellant(s) |
| | Jodi R. Backlund |
| | Backlund & Mistry |
| | Po Box 6490 |
| | Olympia, WA, 98507-6490 |
Counsel for Respondent(s) |
| | Brian Patrick Wendt |
| | Clallam County Prosecuting Attorney's Of |
| | 223 E 4th St Ste 11 |
| | Port Angeles, WA, 98362-3015 |
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 40629-2-II
Respondent,
v.
THADES S. RICH II, UNPUBLISHED OPINION
Appellant.
Hunt, J. -- Thades S. Rich II appeals his jury conviction for second degree assault. He
argues that (1) retrial after the first jury was unable to reach a verdict constituted double jeopardy;
(2) the trial court erred in concluding that he had voluntarily waived his Miranda1 rights before
giving statements to the police; and (3) the trial court's "reasonable doubt" jury instruction was
reversible error because it relieved the State of its burden to prove each element of the crime
beyond a reasonable doubt. We affirm.
FACTS
I. Background
Rich and his girlfriend, Briahn Ballas, were at a bar when Ballas began kissing another
1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
No. 40629-2-II
woman, Carmen Johnson. Rich, who had been drinking throughout that evening, became upset
and left the bar. Ballas and Johnson also left the bar and sat on a bench outside, where, according
to Johnson, Ballas kissed her again.
When Rich returned to the bar to retrieve his debit card from Ballas, Johnson stood up and
Rich pushed her back down. Rich walked away; Johnson followed, shouting at Rich to stop.
Bystanders saw Johnson hit Rich in the back or in the back of the head and then saw Rich pick up
Johnson and "slam" her to the ground, after which Johnson did not move. This altercation injured
Johnson's face. City of Port Angeles Police Officer John Nutter responded and observed Johnson
"bleeding from the face area[,] kind of crumpled in a pile on the ground[,] crying." Report of
Proceedings (RP) (Mar. 22, 2010) at 86. Officer Dallas Maynard located Rich entering a taxi and
activated his patrol car's overhead lights. Rich then began walking toward Maynard and said,
"I'm the one you're looking for." RP (Mar. 23, 2010) at 48. Maynard took Rich into custody,
searched him incident to arrest, placed him in the back of his patrol vehicle, and read him his
Miranda rights.
Maynard then asked Rich what had happened with Johnson. Rich explained that Johnson
had "grabbed" him and then, "without even thinking, [he had] used a . . . strong arm move to grab
her wrist and force her down . . . to the ground so that she landed on her chest." RP (Mar. 23,
2010) at 58-59. Detecting a strong odor of alcohol coming from Rich, Maynard asked if Rich
was willing to provide a portable breath alcohol test (PBT) sample. Rich voluntarily agreed and
Maynard administered the PBT in the back of his police car. Rich's PBT result was a 0.140.
Maynard transported Rich to the police station, where he again advised Rich of his
Miranda rights and interviewed him. After signing a formal waiver of his Miranda rights, Rich
2
No. 40629-2-II
met with Corporal Robert Ensor who conducted two interviews with Rich, one recorded and one
not. Ensor took notes during the unrecorded interview, during which Rich stated that he "did . . .
a strong arm take down and placed [Johnson] on the pavement." RP (Mar. 23, 2010) at 79. Rich
made similar statements during the recorded part of the interview.2
II. Procedure
The State charged Rich with second degree assault. After his first trial ended in a mistrial,
he went to trial again, at the end of which the jury convicted him as charged.
A. First Trial -- Mistrial
In his first trial, Rich requested a jury instruction on the lesser included offense of fourth
degree assault. The trial court held a CrR 3.5 hearing, during which Maynard testified that (1) he
had advised Rich of his Miranda rights after arresting him and placing him in the back of the
patrol car; and (2) he had again advised Rich of his Miranda rights after escorting Rich to the
interview room at the police station, at which point Rich had signed an "advice of rights" form.
Rich testified that he did not believe his waivers of his Miranda rights in Maynard's patrol
car and at the police station had been voluntary, knowing, and intelligent because he had been
"too intoxicated" and he "would not have waived [his] rights if [he] had been sober."3 RP (Jan. 5,
2010) at 78-79. Disagreeing, the trial court orally ruled that Rich had given a "valid waiver" of
his Miranda rights, despite his intoxication. RP (Jan. 5, 2010) at 86.
2 The record before us on appeal does not contain the audio recording or the transcript of the
recorded interview.
3 Rich also testified that while he was in Maynard's patrol vehicle, he (Rich) had "made a
comment about [] probably going to be kicked out of the Coast Guard" because of the incident
with Johnson. RP (Jan. 5, 2010) at 80. Rich testified that Maynard's response was "coasties (sic)
always say that but nothing ever happens to them." RP (Jan. 5, 2010) at 80.
3
No. 40629-2-II
This first trial ended in a mistrial when the jury was unable to reach a verdict and both
Rich and the State agreed that the trial court should not send the jury back for further
deliberations. Rich did not ask the trial court to poll the jurors, and he agreed to the trial court
declaring a mistrial.
B. Retrial
The State retried Rich in front of a different judge. When Maynard began to testify about
what Rich had said after he was under arrest and sitting in the back of the patrol car, Rich
objected, "I don't believe that these statements have been qualified for admission." RP (Mar. 23,
2010) at 49. The trial court then held a CrR 3.5 hearing out of the jury's presence. Maynard
testified that (1) after placing Rich in the back of the patrol car, he advised Rich of his Miranda
rights; (2) he (Maynard) could detect an alcoholic beverage odor on Rich's breath; (3) Rich never
"indicate[d] any confusion about his rights," "indicate[d] that he wanted to exercise his [Miranda]
rights," or "ask[ed] for an attorney"; and (4) Rich "was able to talk, answered [Maynard's]
questions, [and] appeared to understand [Maynard's] questions." RP (Mar. 23, 2010) 52, 55.
The trial court ruled that Rich's custodial statements "were made voluntarily with an
understanding of his right to remain silent if he chose and those statements will be admissible."
RP (Mar. 23, 2010) at 56-57.
When Rich elicited from Officer Maynard on cross-examination that he had administered a
PBT to Rich, the State objected that a PBT is not admissible as a breath test or as substantial
evidence in a driving while intoxicated trial. The trial court overruled the objection and admitted
the test result.
Later in the trial, the State offered, and the trial court admitted, an audio recording of
4
No. 40629-2-II
Ensor's interview with Rich. Although the State also offered the transcript of this interview, the
trial court allowed the jury to see it only while listening to the recording; the trial court did not
allow the jury to take the transcript into the jury room.
Rich took the witness stand at trial and testified that he had grabbed Johnson's hand and
"flipped [her] over" but that he did not know it was Johnson at the time. RP (Mar. 23, 2010) at
242. Four eyewitnesses also testified about Rich's altercation with Johnson.
The trial court instructed the jury on reasonable doubt. Rich objected to instruction 3's
omission of the last sentence of 11 Washington Practice: Washington Pattern Jury Instructions:
Criminal 4.01, at 85 (Suppl. 2011) (WPIC) pattern instruction, "[T]he defendant has no burden
of proving that a reasonable doubt exists." RP (Mar. 24, 2010) at 73. The trial court overruled
Rich's objection and read instruction 3 to the jury. The jury found Rich guilty as charged. He
appeals.4
ANALYSIS
I. No Double Jeopardy
Rich argues that we should reverse his conviction and dismiss his case with prejudice
because "the [trial] court's decision to discharge the jury [in the first trial] violated [his]
constitutional right to receive a verdict from the jury he selected" and his second trial
unconstitutionally placed him in double jeopardy. Br. of Appellant at 14. This argument fails.
A party who invites court action below cannot raise such action as an error on appeal,
even when it is constitutional in nature. See City of Seattle v. Patu, 147 Wn.2d 717, 720-21, 58
4 Our court commissioner initially considered Rich's appeal as a motion on the merits under RAP
18.14 and then transferred it to a panel of judges.
5
No. 40629-2-II
P.3d 273 (2002). Because Rich consented to the trial court's declaration of a mistrial without
first polling the jury, he cannot now claim that the trial court lacked a factual basis for declaring a
mistrial and that his subsequent retrial placed him in double jeopardy.5
A. Invited Error
Rich first contends that the trial court erred in granting a mistrial because (1) it did not
determine "if the other jurors agree[d] with" the presiding juror that there was no reasonable
probability of the jury reaching a verdict within a reasonable time (Br. of Appellant at 12 (citing
State v. Jones, 97 Wn.2d 159, 164, 641 P.2d 708 (1982)); and (2) the trial court lacked a factual
basis for declaring a mistrial without first consulting the other jurors, which rendered his first trial
the equivalent of an acquittal. We do not address this argument because Rich agreed to, and thus
invited, the mistrial.
When the jury announced that it was unable to reach a verdict at the end of Rich's first
trial, the trial court asked Rich and the State, "[I]f I discuss probability of the verdict and the
foreman indicates there's no probability, do you want me to send them out and discuss a mistrial
or simply declare a mistrial?" Suppl. RP (Jan. 6, 2010) at 4. The State responded, "I would -- I
don't think that I would see much point in making them debate further. Usually with this kind of
case we see something within a couple of hours." Suppl. RP (Jan. 6, 2010) at 5. Rich's counsel
agreed, saying, "That's pretty much my thought." Suppl. RP (Jan. 6, 2010) at 5.
The trial court then stated to the deadlocked jury, "[I]n discussions with counsel, we've
5 Accordingly, we do not address Rich's argument that he may raise his double jeopardy claim for
the first time on appeal under the RAP 2.5(a)(3) "manifest error affecting a constitutional right"
exception to the general rule requiring preservation of error below as a prerequisite to raising
issues on appeal.
6
No. 40629-2-II
agreed that if you are unable to reach an opinion at this time we are going to declare a mistrial and
send you home." Suppl. RP (Jan. 6, 2010) at 6. The trial court then dismissed the jury and
commenced discussions with Rich and the State about setting a new trial date. At no time did
Rich attempt to withdraw his agreement or object to the trial court's declaration of a mistrial.
Accordingly, we hold that Rich cannot now claim for the first time on appeal that this mistrial, to
which he agreed, was reversible error.
B. Double Jeopardy
Nor did the retrial following the agreed mistrial place Rich in double jeopardy. Double
jeopardy bars retrial of a defendant where (1) jeopardy has previously attached, (2) jeopardy has
been terminated, and (3) the defendant is again being put in jeopardy for the same offense. State
v. Daniels, 160 Wn.2d 256, 261-62, 156 P.3d 905 (2007).6 Here, the second part of the test is
not met because jeopardy continued, and did not terminate, when the trial court granted the
agreed mistrial.
"Jeopardy may be terminated by acquittal, final conviction, or, in some circumstances,
when the court dismisses the jury without the defendant's consent and dismissal is not in the
interest of justice." State v. Hall, 162 Wn.2d 901, 906-07, 177 P.3d 680 (2008) (emphasis
added) (citing State v. Ervin, 158 Wn.2d 746, 752-53, 147 P.3d 567 (2006)). Unless dismissal of
a jury is necessary to the proper administration of justice,7 discharge of the jury, without the
6 Washington courts interpret the double jeopardy clause of the Washington and United States
constitutions identically. Daniels, 160 Wn.2d at 261. Therefore, we do not need to engage in
separate state and federal double jeopardy analyses.
7 Because jeopardy did not terminate when the trial court declared a mistrial with Rich's consent,
we do not address his argument that the trial court lacked "manifest necessity" or "extraordinary
and striking circumstances" justifying a mistrial. See Br. of Appellant at 12.
7
No. 40629-2-II
defendant's consent, serves as the equivalent of an acquittal. State v. Jones, 97 Wn.2d 159, 162,
641 P.2d 708 (1982). Here, however, the record shows that Rich consented to the mistrial;
therefore, discharging the deadlocked first jury did not serve as an acquittal and jeopardy did not
terminate. Instead, the single ongoing jeopardy of the first trial continued forward into the retrial.
We hold that retrying Rich following his agreed mistrial did not constitute double jeopardy.
II. Voluntariness of Custodial Statements
Rich argues that "[t]he trial court violated [his] constitutional privilege against self
incrimination by admitting his custodial statements" because his intoxication rendered his waiver
of Miranda rights invalid. Br. of Appellant at 15 (emphasis omitted). This argument also fails.
We review de novo whether Rich validly waived his Miranda rights. State v. Campos-
Cerna, 154 Wn. App. 702, 708, 226 P.3d 185, review denied, 169 Wn.2d 1021 (2010). Under
the Fifth Amendment to the United States Constitution and article I, section nine of the
Washington Constitution,8 absent waiver of Miranda rights, a suspect's statements during a
custodial interrogation are presumed involuntary.9 State v. Hickman, 157 Wn. App. 767, 772,
238 P.3d 1240 (2010). "But 'a confession is voluntary, and therefore admissible, if made after the
defendant has been advised concerning [his Miranda] rights and the defendant then knowingly,
voluntarily and intelligently waives those rights.'" Hickman, 157 Wn. App. at 772 (quoting State
v. Aten, 130 Wn.2d 640, 663, 927 P.2d 210 (1996)). To be voluntary, a defendant's waiver must
8 The Washington Supreme Court interprets both provisions equivalently. State v. Easter, 130
Wn.2d 228, 235, 922 P.2d 1285 (1996).
9 Unless curative measures are taken before the non-waiving suspect's statement is made, courts
must exclude the suspect's statements. Missouri v. Seibert, 542 U.S. 600, 622, 124 S. Ct. 2601,
159 L. Ed. 2d 643 (2004).
8
No. 40629-2-II
be the product of rational intellect and free will. State v. Brown, 158 Wn. App. 49, 61, 240 P.3d
1175 (2010), review denied, 171 Wn.2d 1006 (2011). In determining voluntariness, we evaluate
the totality of the circumstances, including Rich's physical and mental condition, his experience,
and the conduct of the police. Brown, 158 Wn. App. at 61. Evidence of intoxication is a factor
that we consider in determining the validity of a waiver of Miranda rights. State v. Reuben, 62
Wn. App. 620, 625-26, 814 P.2d 1177 (1991).
In Rueben, Division Three of our court held that "intoxication was not a significant factor
affecting cognition" (and thus voluntariness) because the defendant gave "coherent information"
to law enforcement, which indicated that the defendant "understood exactly what was going on."
Reuben, 62 Wn. App. at 625-26. Division Three also noted that the defendant reacted when he
was told he was under arrest, maintained his attention while law enforcement read him his rights,
and was an "alcohol seasoned person who could show less than usual impairment" when
intoxicated. Reuben, 62 Wn. App. at 626.
Here, the State demonstrated similar facts. First, it was obvious to Maynard that Rich
understood what was happening when Rich reacted to Maynard's arrival by volunteering to
Maynard, "I'm the one you're looking for." RP (Mar. 23, 2010) at 48. Rich did not appear
confused, he was able to understand and to answer Maynard's questions, and he (Rich) spoke in
"coherent sentences" and never slurred his words. RP (Mar. 23, 2010) at 55. Ensor also testified
that, when he asked Rich if he was aware of his rights and was willing to talk to him, Rich said
that he was. And Rich himself testified that the police officers did not threaten to make him talk
to them or make any promises to induce him to waive his rights. These facts demonstrate that
Rich's intoxication "was not a significant factor affecting cognition." Reuben, 62 Wn. App. at
9
No. 40629-2-II
626. Accordingly, we hold that the trial court did not err by admitting Rich's custodial
statements.
10
No. 40629-2-II
III. Reasonable Doubt Jury Instruction
Lastly, Rich argues that the trial court violated his state and federal due process rights in
giving the reasonable doubt instruction because its language lacked one sentence from WPIC
4.01. We disagree.
A. Standard of Review
A challenged jury instruction is reviewed de novo, in the context of the instructions as a
whole. State v. Castillo, 150 Wn. App. 466, 469, 208 P.3d 1201 (2009). Instructions must
convey to the jury that the State bears the burden of proving every essential element of a criminal
offense beyond a reasonable doubt. State v. Bennett, 161 Wn.2d 303, 307, 165 P.3d 1241
(2007). Instructions must also properly inform the jury about the applicable law, not mislead the
jury, and permit each party to argue its theory of the case. Bennett, 161 Wn.2d at 307. It is
reversible error to instruct the jury in a manner relieving the State of its burden to prove every
element of a crime beyond a reasonable doubt. Bennett, 161 Wn.2d at 307.
An erroneous jury instruction is "generally subject to a constitutional harmless error
analysis." State v. Lundy, 162 Wn. App. 865, 871, 256 P.3d 466 (2011). We may hold the error
harmless if we are satisfied "'beyond a reasonable doubt that the jury verdict would have been the
same absent the error.'" Lundy, 162 Wn. App. at 872 (quoting State v. Bashaw, 169 Wn.2d 133,
147, 234 P.3d 195 (2010)). Even misleading instructions do not require reversal unless the
complaining party can show prejudice. Lundy, 162 Wn. App. 872.
B. Instruction 3 Harmless, if Error
The trial court gave the following jury instruction on reasonable doubt:
The Defendant has entered a plea of not guilty. That plea puts in issue
every element of the crime charged. The State is the plaintiff and has the burden of
11
No. 40629-2-II
proving each element of the crime beyond a reasonable doubt.
A Defendant is presumed innocent. This presumption continues
throughout the entire trial unless during your deliberations you find it has been
overcome by the evidence beyond a reasonable doubt.
A reasonable doubt is one for which a reason exists and may arise from the
evidence or lack of evidence. It is such a doubt as would exist in the mind of a
reasonable person after fully, fairly and carefully considering all of the evidence or
lack of evidence. If, after such consideration, you have an abiding belief in the
truth of the charge, you are satisfied beyond a reasonable doubt.
Clerk's Papers (CP) at 26.
Rich argues that the reasonable doubt jury instruction 3's omission of one sentence from
the language of WPIC 4.01 was reversible error under our Supreme Court's Bennett decision.
Bennett "instructed" trial courts "to use the WPIC 4.01 instruction . . . until a better instruction is
approved." 161 Wn.2d at 318. The Bennett court, however, did not decide whether the failure to
give the entire WPIC 4.01 was automatically reversible or instead subject to harmless error
analysis.
Division One in Castillo concluded that such failure was grounds for automatic reversal.
See 150 Wn. App. at 472. Based on Bennett and Castillo, the State here initially "concede[d the]
error" that the trial court deviated from the language of WPIC 4.01 and asked us to "remand for
further proceedings." Br. of Resp't at 24.
Two years after Division One filed Castillo and after the parties filed their briefs here, we
reached the opposite conclusion in Lundy, disagreeing with Castillo and holding that failure to
give WPIC 4.01 verbatim was subject to harmless error analysis and that the deviating reasonable
doubt instruction in Lundy was harmless error. Lundy, 162 Wn. App. at 872-73. We ordered the
parties here to submit supplemental briefing in light of Lundy. In so doing, the State changed its
position and no longer concedes that the instruction was reversible error. Although Rich does not
12
No. 40629-2-II
argue that we should depart from our holding in Lundy, he continues to argue that the
instructional error here was not harmless. After considering this additional briefing, we hold that
the trial court's slight deviation from WPIC 4.01 was harmless error.
As we have already noted, the reasonable doubt jury instruction here differed from WPIC
4.01 only in its omission of the following sentence: "The defendant has no burden of proving that
a reasonable doubt exists." Rich contends that this omission was not harmless error. Rich points
out that the reasonable doubt instruction in Lundy, which we held was harmless error, deviated
from WPIC 4.01 only in that it reversed the order of the first two paragraphs of WPIC 4.01 and
modified the first three sentences of the paragraph on the State's burden of proof.10 Rich suggests
that the Lundy reasonable doubt instruction even may have "be[en] an improvement on WPIC
4.01" because it "emphasiz[ed] the presumption of innocence." Suppl. Br. of Appellant at 2 &
n.2. Rich then avers that the Lundy instruction at least contained the "defendant has no burden"
sentence, which the instruction here lacked.
Next, Rich compares the instruction here with the Castillo instruction, which also omitted
10 Specifically, the Lundy reasonable doubt instruction read,
A defendant is presumed innocent. This presumption continues throughout
the entire trial unless you find during your deliberations that it has been overcome
by evidence beyond a reasonable doubt.
Each crime charged by the State includes one or more elements which are
explained in a subsequent instruction. The State has the burden of proving each
element of a charged crime beyond a reasonable doubt. The defendant has no
burden of proving that a reasonable doubt exists.
A reasonable doubt is one for which a reason exists and may arise from the
evidence or lack of evidence. It is such a doubt as would exist in the mind of a
reasonable person after fully, fairly, and carefully considering all of the evidence or
lack of evidence. If, from such consideration, you have an abiding belief in the
truth of the charge, you are satisfied beyond a reasonable doubt.
162 Wn. App. at 870-71.
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No. 40629-2-II
the "defendant has no burden" sentence;11 he argues that, because Division One reversed
Castillo's conviction, we should also reverse Rich's conviction. We disagree.
In Castillo, the omission of the "defendant has no burden" sentence was significant
because the State's cross-examination and closing argument "suggested Castillo needed to explain
why [the victim] might be lying." 150 Wn. App. at 473. Here, in contrast, the State never made
any such suggestion. Because the State never attempted to shift its burden of proof here, as it did
in Castillo, the reasonable doubt instruction did not prejudice Rich like it prejudiced Castillo.
11 The Castillo reasonable doubt instruction read,
The defendant has entered a plea of not guilty. That plea puts in issue
every element of the crime charged. The State is the Plaintiff and has the burden
of proving each element of a crime charged beyond a reasonable doubt. While the
rule as to reasonable doubt extends to each element of a crime charged, each
particular fact advanced by the State which does not amount to an element need
not be established beyond a reasonable doubt. For example, evidence of a person's
motive for the doing of an act might, in some cases, be allowed by the court to be
admitted in a trial since a person who is motivated to commit an act might be more
likely to have actually committed the act. But motive is never an element of a
crime, and therefor[e], if motive evidence is allowed in a trial, one's motive need
not be proved beyond a reasonable doubt.
A defendant is presumed innocent. This presumption continues throughout
the entire trial unless you find it has been overcome by the evidence beyond a
"reasonable doubt", [sic]
A "reasonable doubt" is not a fanciful or ingenious doubt or conjecture, but
an honest, conscientious doubt suggested by the material evidence or lack of it in
the case. It is an honest misgiving caused by insufficiency of proof of guilt. Proof
beyond a reasonable doubt does not mean proof to an absolute or mathematical
certainty, but it does mean proof which leaves you firmly convinced of the
defendant's guilt. The proof need not exclude every hypothesis or possibility of
innocence, but proof beyond a reasonable doubt must exclude every fair and
rational hypothesis except that of guilt. A "reasonable doubt" is a doubt as would
exist in the mind of a reasonably prudent person after fully, fairly and carefully
considering all of the evidence or lack of evidence. If, on the whole evidence, you
have an abiding belief in the truth of the charge, you are satisfied beyond a
reasonable doubt.
150 Wn. App. at 470-71 (alterations in original).
14
No. 40629-2-II
Furthermore, the trial court, Rich, and the State repeatedly made it clear to the jury that
the State had the burden to prove Rich guilty beyond a reasonable doubt.12 And unlike the
potentially confusing Castillo instruction,13 the reasonable doubt instruction here did not contain
any such potentially misleading or confusing language or alterations. It deviated from WPIC 4.01
only in a single, limited respect, which as explained above, was not harmful because the State
never attempted to shift the burden of proof to Rich. More importantly, instruction 3 included the
following language establishing that the State clearly bore the burden of proof beyond a
reasonable doubt: "The State is the plaintiff and has the burden of proving each element of the
crime beyond a reasonable doubt." CP at 26.
Moreover, the evidence that Rich committed second degree assault was overwhelming:
Four eyewitnesses testified that they saw Rich slam Johnson to the ground. And Rich also did not
deny that he had grabbed and flipped Johnson over onto the ground; rather, he testified at trial
that he had not realized at the time that it was Johnson.
12 RP (Mar. 24, 2010) at 78 (before closing arguments, the trial court advised the jury that "the
State has the burden of proof in this case . . . Ms. Lundwall who has the burden of proof"); RP
(Mar. 24, 2010) at 78 (during closing arguments, the State explained, "[T]here's certain things
that the State needs to prove in order for you to find the Defendant guilty in this case."); RP
(Mar. 24, 2010) at 85 (Rich's counsel stated during closing argument, "[M]y client has no burden
to prove anything. He doesn't have to prove anything.")
Additionally, the reasonable doubt instruction stated, "The State . . . has the burden of
proving each element of the crime beyond a reasonable doubt." CP at 26 (emphasis added). The
instruction on the lawful-use-of-force defense also made clear that the State bore the burden of
proof. See CP at 37 ("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 has not proved the absence
of this defense beyond a reasonable doubt, it will be your duty to return a verdict of not guilty.").
13 The Castillo trial judge drafted the instruction and described "reasonable doubt," in part, as
"not a fanciful or ingenious doubt or conjecture, but an honest, conscientious doubt." 150 Wn.
App. at 470. Division One concluded that there was a "potential for confusion in using the . . .
ingenious" language because the dictionary contained different definitions of the word. Castillo,
150 Wn. App. at 474.
15
No. 40629-2-II
Rich fails to demonstrate that the omission of this sentence from the instruction caused
him prejudice, especially in light of the fact that the State never attempted to shift the burden of
proof to Rich, the jury was aware that the State bore the burden, and the evidence supporting
Rich's second degree assault conviction was overwhelming. We are satisfied beyond a reasonable
doubt that the jury verdict would not have differed had the trial court included the additional
"defendant has no burden" sentence in its reasonable doubt instruction. Accordingly, we hold that
omission of this sentence from WPIC 4.01 in instruction 3 was harmless error.
We affirm.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040, it
is so ordered.
Hunt, J.
We concur:
Penoyar, C.J.
Johanson, J.
16
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