State of Washington v. Skinner, 97-1-00059-3

• Decision Date: 24 May 1999
• Docket Number: 97-1-00059-3
• Court: Washington Court of Appeals
• Parties: <PartyHeader> STATE OF WASHINGTON, RESPONDENT/ CROSS-APPELLANT, v. JAMES D. SKINNER, APPELLANT/CROSS-RESPONDENT. </PartyHeader>

[1]
[2]	STATE OF WASHINGTON, RESPONDENT/ CROSS-APPELLANT,; v.; JAMES D. SKINNER, APPELLANT/CROSS-RESPONDENT.
[3]	NO. 43267-2-I
[4]	Washington Court of Appeals
[5]	SOURCE OF APPEAL Appeal from Superior Court of Snohomish County Docket No: 97-1-00059-3 Judgement or order under review Date filed: 11/14/1997 Judge signing: Hon. Paul D. Hansen
[6]	May 24, 1999
[7]	Judges Authored by Faye C. Kennedy Concurring: William W. Baker Mary K. Becker
[8]	Counsel OF Record Counsel for Appellant(s) Tom P. Conom Edmonds Bay Bldg. 51 W Dayton St Edmonds, WA 98020-4111 Counsel for Respondent(s) Seth A. Fine Snohomish Co. Prosecutor's Office Snohomish Co Pros Office 3000 Rockefeller Everett, WA 98201
[9]	The opinion of the court was delivered by: Kennedy, C.j.
[10]	UNPUBLISHED OPINION
[11]	James D. Skinner appeals his convictions for two counts of first degree child molestation and one count of first degree child rape, contending that the trial court committed automatic reversible error by reading its instructions to the jury before opening statements and then failing to reread its instructions to the jury after the presentation of evidence. He also contends that the trial court erred in automatically denying his motion for release pending appeal under RCW 9.95.062(2) without making an individualized determination under CrR 3.2 that his release would pose a risk of flight or danger to the community.
[12]	Although we disapprove of the trial court's innovative procedure of reading its instructions to the jury before opening statements instead of after the presentation of evidence, we refuse to consider the alleged error because Skinner did not object to the procedure at trial and cannot demonstrate that the procedure actually prejudiced him. See RAP 2.5(a)(3). We also refuse to consider Skinner's contention that the trial court erred in denying his motion for release pending appeal, because the Supreme Court this state's highest court considered and rejected this argument before transferring Skinner's appeal to this court. Accordingly, we affirm.
[13]	FACTS
[14]	On September 5, 1997, the State filed an amended information charging Skinner with two counts of first degree child molestation and two counts of first degree child rape. On September 22, 1997, the trial court impaneled a jury. The next day, the trial court announced that it would prefer to read its instructions to the jury before opening statements:
[15]	"I'd rather give instructions to the jury before we start a case like this. It gives them a much better perspective on how to deal with the evidence. Frequently, we can't deal with instruction ahead of time because we don't know -- there may be some anticipated problems with the evidence. But if you think we can do it now, I'd much rather do so." 2 Report of Proceedings at 133.
[16]	Neither Skinner nor the State objected, and the parties agreed on a set of instructions for the jury. The trial court then advised counsel that further instructions could be given if warranted: "Counsel, if something should come up during the trial, I will tell the jury that there may be supplemental instructions covering events during the trial, so if something does come up, we can always cover it." 2 Report of Proceedings at 138. The trial court then recalled the jury, explained the procedure that the court would follow, and read its instructions to the jury.
[17]	Following opening statements, the trial court, without objection from either party, reread the instruction defining "sexual intercourse" to include a phrase inadvertently omitted from the original reading of the instructions. At the close of the trial's evidentiary phase, the trial court informed the jury that no additional instructions would be given: Ladies and gentlemen, normally, at this time, of course, I read to you the instructions, and there's been no requested additions to instructions. So the instructions I read to you at the commencement of the case will be those that will be given to you to take into the jury room. 5 Report of Proceedings at 782.
[18]	The prosecutor and defense counsel, without objection, proceeded with their closing arguments.
[19]	The jury returned a verdict of guilty on both counts of first degree child molestation and one count of first degree child rape, and a verdict of not guilty on the other count of first degree child rape. After the trial court denied Skinner's motion for release pending appeal, Skinner petitioned the Supreme Court for direct review and filed an "Emergency Motion to Set Appeal Bond." Clerk's Papers at 14-25. After a Supreme Court Commissioner denied Skinner's motion for release pending appeal, the Supreme Court denied Skinner's motion to modify the Supreme Court Commissioner's ruling and transferred Skinner's case to this court.
[20]	DISCUSSION
[21]	I. THE TRIAL COURT'S FAILURE TO REREAD ITS INSTRUCTIONS AFTER THE PRESENTATION OF EVIDENCE
[22]	Although Skinner concedes that he did not object to the trial court's failure to reread its instructions to the jury after the presentation of evidence, he contends that the trial court's failure to do so constitutes a fundamental constitutional error of such magnitude that automatic reversal is warranted.

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