State v. O'Hara

• Decision Date: 29 November 2007
• Docket Number: No. 25597-2-III.,25597-2-III.
• Citation: 174 P.3d 114,141 Wash.App. 900
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Ryan J. O'HARA, Appellant.

174 P.3d 114

141 Wash.App. 900

STATE of Washington, Respondent, v. Ryan J. O'HARA, Appellant.

No. 25597-2-III.

Court of Appeals of Washington, Division 3.

November 29, 2007.

Kevin Michael Korsmo, Attorney at Law, Andrew J. Metts III, Spokane County Pros. Offc. Spokane, WA, for Respondent.

Jordan Broome McCabe, Attorney at Law, Bellingham, WA, for Appellant.

PUBLISHED OPINION

STEPHENS, J.

¶ 1 Ryan J. O'Hara was charged with one count of second degree assault, and he claimed self-defense. The jury found him guilty. On appeal, he contends that he was prevented from arguing his theory of self-defense due to an erroneous instruction. He also contends that the testimony of the investigating officers violated his constitutional right to confront witnesses, and that the evidence was insufficient to support his conviction. Concluding the jury was not adequately instructed on self-defense, we reverse his conviction.

FACTS

¶ 2 On January 3, 2006, police officers Rob Boothe and Isamu Yamada were on patrol when they were dispatched to an area of north Spokane to investigate a report that an individual was being chased with a stick. When the officers arrived at the scene, they spoke with Mr. O'Hara. Mr. O'Hara told the officers that his car had been stolen by a woman named Tina Gumm. Mr. O'Hara said he had been hit in the head by Ms. Gumm and another individual. He also said that he was then chased by someone with a stick. After the officers concluded their interview with Mr. O'Hara, they took him back to the home where the incident occurred to conduct their investigation.

¶ 3 When they arrived at the home, Jeff Loree opened the door. He was bleeding heavily from the head and his clothes were drenched in blood. Mr. Loree told Officer Boothe that Mr. O'Hara hit him with a "Mag light" flashlight. Report of Proceedings (RP) at 83. Mr. O'Hara told Officer Boothe that Mr. Loree hit him for no reason and that he hit him back with the flashlight in self-defense. Officer Yamada spoke with other individuals at the home to find out what had happened. Officer Boothe also spoke to Ms. Gumm and Michael Nevin, a resident of the home. After the officers concluded their investigation, they arrested Mr. O'Hara. Mr. O'Hara was charged by amended information with one count of second degree assault.

¶ 4 At trial, Mr. Loree testified that he went to Mr. Nevin's house after leaving a bar. When he arrived at the house, Mr. Nevin and Ms. Gumm were there. About 1½ hours later, Ms. Gumm left the home. When she returned, Mr. Loree heard Ms. Gumm arguing with Mr. O'Hara about keys. Mr. Loree said he confronted Ms. Gumm and Mr. O'Hara. He said he asked the couple to have respect for Mr. Nevin's home and asked them to return the keys to each other. Mr. Loree said that Ms. Gumm and Mr. O'Hara then gave the keys to him. He said he gave one set of keys to Ms. Gumm and started to give the other set to Mr. O'Hara when Ms. Gumm asked him not to give Mr. O'Hara the keys until she could get her baby's clothes out of the trunk of the car. They then walked out to the car.

¶ 5 Mr. Loree testified that he bent over to try and get the keys into the trunk lock when Mr. O'Hara hit him. He said that he picked up a rock to protect himself and then started chasing Mr. O'Hara to prevent him from running away. Mr. Loree said that he threw the rock at Mr. O'Hara and Mr. O'Hara hit him in the head again with the flashlight. Mr. Loree said he then picked up a cedar timber and chased Mr. O'Hara with it. Mr. Loree said that he fell down while chasing Mr. O'Hara, and that Mr. O'Hara then hit him in the head four or five times with the flashlight.

¶ 6 Mr. O'Hara also testified. He testified that he went to Mr. Nevin's house to loan his car to Ms. Gumm. He said that at about 4:00 a.m., Ms. Gumm returned to the house. He said that he took a flashlight out to his car to see if his keys were in the car. When he did not find his keys, he said he went back into the house and asked Ms. Gumm for his keys. He said Ms. Gumm had let him store some items in her storage locker two days earlier, and that she would not give him his keys until he returned her storage key.

¶ 7 Mr. O'Hara said that Ms. Gumm gave Mr. Loree the keys. He asked Mr. Loree for the keys, but Mr. Loree walked out of the house. He said that he followed Mr. Loree and asked for his keys four or five times. Mr. Loree ignored his requests and instead put the key into the trunk lock and tried to open the trunk. Mr. O'Hara said he grabbed the keys from Mr. Loree's hand, but Mr. Loree hit him on the forehead with a closed fist. He said he told Mr. Loree not to open the trunk, but he tried to open the trunk anyway. He then hit Mr. Loree with the flashlight. Mr. O'Hara said that Mr. Loree next picked up a rock and chased him. He said Mr. Loree threw the rock at him, and then picked up a board and started chasing him with it. He said that he called the police while being chased by Mr. Loree and another man. Mr. O'Hara said that he did not hit Mr. Loree while being chased, but that Mr. Loree injured himself when he swung the board at him, spun around and was thrown to the ground where he hit his head.

¶ 8 At the conclusion of the evidence, the court gave the following self-defense instruction to the jury:

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 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.

¶ 9 The court also instructed the jury as to the meaning of "malicious" 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.

¶ 10 The jury convicted Mr. O'Hara as charged. This appeal follows.

ANALYSIS

A. SELF-DEFENSE AND INSTRUCTION No. 10

¶ 11 Mr. O'Hara claimed self-defense, and the trial court gave jury instruction 11, based on a pattern instruction. 11 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 17.02, at 196 (2d ed. 1994) (WPIC). While Mr. O'Hara does not challenge this instruction, he argues that the companion jury instruction 10 gave an incomplete definition of "malice," which omitted critical statutory language allowing the jury to infer malice from an act done in willful disregard of the rights of another. He argues the erroneous malice definition prejudiced his ability to assert self-defense because he claimed Mr. Loree acted in disregard of his rights when he refused to return his keys and attempted to open his trunk.

¶ 12 Although Mr. O'Hara failed to take exception in the trial court, the failure to properly instruct the jury on self-defense is a manifest constitutional error that may be raised for the first time on appeal. RAP 2.5(a)(3); see State v. Kronich, 160 Wash.2d 893, 899, 161 P.3d 982 (2007) (describing manifest error as one that is truly constitutional and had practical and identifiable consequences at trial); cf. State v. Studd, 137 Wash.2d 533, 547, 973 P.2d 1049 (1999) (distinguishing between invited error regarding erroneous self-defense instruction and situation in which defense counsel fails to raise issue below). We closely scrutinize jury instructions relating to a claim of self-defense. Such instructions must more than adequately convey the law. State v. LeFaber, 128 Wash.2d 896, 900, 913 P.2d 369 (1996). Read as a whole, the jury instructions must make the legal standard for self-defense manifestly apparent to the average juror. Id. Where they do not, prejudice is presumed. State v. Birnel, 89 Wash.App. 459, 472, 949 P.2d 433 (1998), review denied, 138 Wash.2d 1008, 989 P.2d 1141 (1999).

¶ 13 Here, the court submitted to the jury an instruction on malice that provided: "Malice and maliciously mean an evil intent, wish, or design to vex, annoy or injure another person." CP at 34 (jury instruction 10). This instruction omitted the following language from RCW 9A.04.110(12): "Malice may be inferred from an act done in willful disregard of the rights of another." See also WPIC 2.13, at 57 (Supp.2005). Mr. O'Hara testified that he asked Mr. Loree for his car keys four or five times. He said that Mr. Loree would not return them, but instead put them into the trunk lock of his car and then opened his trunk. Mr. O'Hara said that he hit Mr. Loree on the head to stop him from opening the trunk. Based on these facts, a properly instructed jury could have reasonably inferred malice by finding that Mr. Loree's actions constituted a willful disregard of Mr. O'Hara's rights in his personal property.

¶ 14 "An error affecting a defendant's self-defense claim is constitutional in nature and cannot be deemed harmless unless it is harmless beyond a reasonable doubt." Birnel, 89 Wash.App. at 473, 949 P.2d 433. The test is whether the jury could have accepted Mr. O'Hara's version of events but found him guilty under the erroneous instruction. Id. at 472, 949 P.2d 433. Because Mr. O'Hara asserted that his actions against Mr. Loree were taken in the defense of his...