State v. O'Hara, No. 81062-1.

CourtUnited States State Supreme Court of Washington
Writing for the CourtFairhurst
Citation167 Wn.2d 91,217 P.3d 756
PartiesSTATE of Washington, Petitioner, v. Ryan J. O'HARA, Respondent.
Docket NumberNo. 81062-1.
Decision Date01 October 2009
217 P.3d 756
167 Wn.2d 91
STATE of Washington, Petitioner,
v.
Ryan J. O'HARA, Respondent.
No. 81062-1.
Supreme Court of Washington, En Banc.
Argued January 15, 2009.
Decided October 1, 2009.

[217 P.3d 759]

Andrew J. Metts, III, Spokane County Prosecutor's Office, Spokane, WA, for Petitioner.

Jordan Broome McCabe, Attorney at Law, Bellevue, WA, for Respondent.

FAIRHURST, J.


¶ 1 Under RAP 2.5(a), appellate courts may refuse to hear any claim of error not raised at trial. Even if not raised at the trial court, a party on appeal may raise claims of "manifest error affecting a constitutional right." RAP 2.5(a). Ryan J. O'Hara did not object to the self-defense jury instruction provided at his trial on a charge of second degree assault. The Court of Appeals held the trial court's failure to provide a complete jury instruction on the definition of "malice" constituted a manifest error affecting a constitutional right and reversed O'Hara's conviction. Because the jury instruction does not constitute a manifest error affecting a constitutional right, we reverse.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

¶ 2 On January 3, 2006, while spending the night at a friend's house, Jeffrey Loree intervened in an argument between Tina Gumm and O'Hara over the keys to O'Hara's car. At some point, Loree gained possession of the keys. Loree then walked outside with O'Hara to the car in an effort to retrieve several of Gumm's items left in the car trunk. As Loree put the key in the lock, O'Hara struck Loree on the head with a "Mag" flashlight. Verbatim Report of Proceedings at 46. Loree proceeded to chase O'Hara, first with a rock and later, a lumber board. After Loree put the rock down, O'Hara approached Loree and again struck him on the head with the flashlight. Later, when Loree fell while chasing O'Hara with a board, O'Hara hit Loree on the head four or five times with the flashlight.

¶ 3 The State charged O'Hara with third degree assault. It later amended the information to charge second degree assault.

¶ 4 At trial, O'Hara argued he acted in self-defense. O'Hara testified that, while walking from the house to the car, he repeatedly asked Loree for the keys to the car. He also testified that, at one point, he reached for the keys and Loree punched him in the forehead. O'Hara claimed he hit Loree only once with the flashlight and did not hit Loree when Loree chased him.

¶ 5 At O'Hara's request, the trial court provided the following jury instruction:

Instruction No. 11

It is a defense to a charge of Second Degree Assault 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 and/or 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 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.

Clerk's Papers (CP) at 35.

¶ 6 Without O'Hara's request or objection, the trial court sua sponte instructed the jury as to the meaning of "malice" used in the self-defense instruction:

Instruction No. 10

Malice and maliciously mean an evil intent, wish, or design to vex, annoy or injure another person.

CP at 34. In instruction 4, the court also instructed the jury:

Evidence may be either direct or circumstantial. Direct evidence is that given

217 P.3d 760

by a witness who testifies concerning facts that he or she has directly observed or perceived through the senses. Circumstantial evidence is evidence of facts or circumstances from which the existence or nonexistence of other facts may be reasonably inferred from common experience. The law makes no distinction between the weight to be given to either direct or circumstantial evidence. One is not necessarily more or less valuable than the other.

CP at 28.

¶ 17 The jury convicted O'Hara of second degree assault.

¶ 8 On appeal, O'Hara challenged his conviction on the ground the trial court's instruction 10 provided an incomplete definition of "malice." He contended the trial court failed to include the rest of the definition of "`[m]alice'" in RCW 9A.04.110(12) that provides "[m]alice may be inferred from an act done in wilful disregard of the rights of another, or an act wrongfully done without just cause or excuse, or an act or omission of duty betraying a wilful disregard of social duty."

¶ 9 Reasoning that the omission in the jury instruction was a manifest error affecting a constitutional right that O'Hara, under RAP 2.5(a), could raise for the first time on appeal, the Court of Appeals reversed O'Hara's conviction. State v. O'Hara, 141 Wash.App. 900, 174 P.3d 114 (2007). We granted the State's petition for review on the jury instruction issue only. State v. O'Hara, 164 Wash.2d 1002, 190 P.3d 55 (2008).

II. ISSUES

A. Are allegedly erroneous self-defense jury instructions automatically constitutional in nature and presumed prejudicial?

B. Does the trial court's failure to include the entire statutory definition of "malice" in its jury instruction qualify under the manifest constitutional error exception to the requirement that a party preserve its claim at trial?

III. ANALYSIS

¶ 10 It has long been the law in Washington that an "appellate court may refuse to review any claim of error which was not raised in the trial court." RAP 2.5(a); State v. Lyskoski, 47 Wash.2d 102, 108, 287 P.2d 114 (1955). The underlying policy of the rule is to "encourag[e] the efficient use of judicial resources. The appellate courts will not sanction a party's failure to point out at trial an error which the trial court, if given the opportunity, might have been able to correct to avoid an appeal and a consequent new trial." State v. Scott, 110 Wash.2d 682, 685, 757 P.2d 492 (1988). The rule comes from the principle that trial counsel and the defendant are obligated to seek a remedy to errors as they occur, or shortly thereafter. See City of Seattle v. Harclaon, 56 Wash.2d 596, 597, 354 P.2d 928 (1960).

¶ 11 The general rule that an assignment of error be preserved includes an exception when the claimed error is a "manifest error affecting a constitutional right." RAP 2.5(a). This exception encompasses developing case law while ensuring only certain constitutional questions can be raised for the first time on review. RAP 2.5 cmt. (a) at 86 Wash.2d 1152 (1976).

¶ 12 To meet RAP 2.5(a) and raise an error for the first time on appeal, an appellant must demonstrate (1) the error is manifest, and (2) the error is truly of constitutional dimension. State v. Kirkman, 159 Wash.2d 918, 926, 155 P.3d 125 (2007) (citing State v. WWJ Corp., 138 Wash.2d 595, 602, 980 P.2d 1257 (1999); Scott, 110 Wash.2d at 688, 757 P.2d 492). Stated another way, the appellant must "identify a constitutional error and show how the alleged error actually affected the [appellant]'s rights at trial." Id. at 926-27, 155 P.3d 125. If a court determines the claim raises a manifest constitutional error, it may still be subject to a harmless error analysis. State v. McFarland, 127 Wash.2d 322, 333, 899 P.2d 1251 (1995); State v. Lynn, 67 Wash.App. 339, 345, 835 P.2d 251 (1992).

¶ 13 In analyzing the asserted constitutional interest, we do not assume the alleged error is of constitutional magnitude.

217 P.3d 761

Scott, 110 Wash.2d at 687, 757 P.2d 492. We look to the asserted claim and assess whether, if correct, it implicates a constitutional interest as compared to another form of trial error. See id. at 689-91, 757 P.2d 492. In instances where the allegation is that the defendant's due process rights were violated because he or she was denied a fair trial, the court will look at the defendant's allegation of a constitutional violation, and the facts alleged by the defendant, to determine whether, if true, the defendant's constitutional right to a fair trial has been violated. See id. (holding because nothing in the constitution requires the meaning of particular terms in a jury instruction to be specifically defined, the defendant's unpreserved claim regarding the jury instructions did not constitute constitutional error and, thus, was not properly preserved for appellate review).

¶ 14 After determining the error is of constitutional magnitude, the appellate court must determine whether the error was manifest. "'Manifest' in RAP 2.5(a)(3) requires a showing of actual prejudice." Kirkman, 159 Wash.2d at 935, 155 P.3d 125 (citing State v. Walsh, 143 Wash.2d 1, 8, 17 P.3d 591 (2001); McFarland, 127 Wash.2d at 333-34, 899 P.2d 1251). To demonstrate actual prejudice, there must be a "`plausible showing by the [appellant] that the asserted error had practical and identifiable consequences in the trial of the case.'" Kirkman, 159 Wash.2d at 935, 155 P.3d 125 (internal quotation marks omitted) (quoting WWJ Corp., 138 Wash.2d at 603, 980 P.2d 1257). In determining whether the error was identifiable, the trial record must be sufficient to determine the merits of the claim. Id. at 935, 980 P.2d 1257 (citing WWJ Corp., 138 Wash.2d at 602, 980 P.2d 1257; McFarland, 127 Wash.2d at 333, 899 P.2d 1251 (citing State v. Riley, 121 Wash.2d 22, 31, 846 P.2d 1365 (1993))). "If the facts necessary to adjudicate the claimed error are not in the record on appeal, no actual prejudice is shown and the...

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