State v. Weaver

• Decision Date: 14 October 2021
• Docket Number: No. 99041-7,99041-7
• Citation: 496 P.3d 1183
• Parties: STATE of Washington, Respondent, v. Sammy Burris WEAVER, Petitioner.
• Court: Washington Supreme Court

496 P.3d 1183

STATE of Washington, Respondent,

v.Sammy Burris WEAVER, Petitioner.

No. 99041-7

Supreme Court of Washington.

Filed: October 14, 2021

Devon Carroll Knowles, Washington Appellate Project, 1511 3rd Ave. Ste. 610, Seattle, WA, 98101-1683, for Petitioner.

Timothy J. Higgs, Mason Co. Pros. Atty. Office, P.O. Box 639, Shelton, WA, 98584-0639, for Respondent.

OWENS, J.

¶1 Sammy Burris Weaver was charged with one count of residential burglary under RCW 9A.52.025. In the jury instructions, the parties agreed to include the lesser included offense of criminal trespass in the first degree. RCW 9A.52.070. At trial, he was found guilty of only the lesser charge of criminal trespass in the first degree. On appeal, Mr. Weaver alleges that the jury instruction for knowledge conflicted with the instruction for trespass, relieving the State of its burden of proving each element of criminal trespass beyond a reasonable doubt.

¶2 This case asks the court to determine whether the jury instruction defining the elements of first degree trespass conflicted with the jury instruction defining knowledge and whether Mr. Weaver invited the error by proposing the lesser included offense instruction. Here, Mr. Weaver did not invite the error because he did not propose the instruction to which he assigns error—"Instruction No. 14," defining "knowledge." However, we reject Mr. Weaver's claim on the merits because the jury instructions, when read as a whole, correctly state the law and do not relieve the State of its burden to prove each element beyond a reasonable doubt. Therefore, we affirm Mr. Weaver's conviction.

I. STATEMENT OF FACTS

¶3 On August 19, 2017, Mr. Weaver went to a house party. Mr. Weaver's motorcycle had been recently stolen, and he had heard that the thief was at the party. When Mr. Weaver retrieved his motorcycle, the thief pursued him with a gun. Mr. Weaver tried calling the police but realized his phone was dead. He knew people in the neighborhood, so he ran to the home of his friends, Philip Sr. and Philip Jr., not knowing they had moved. Mr. Weaver testified that he visited the home in the past, and at the time he believed his friends still lived there.

¶4 When he arrived at approximately three or four in the morning, he noticed the home was empty or in the process of being remodeled. Mr. Weaver thought his friends might be out but would soon return. Mr. Weaver entered the residence and plugged in his phone to charge. He eventually fell asleep and awoke to law enforcement knocking and entering the residence. The State charged Mr. Weaver with one count of residential burglary. This was based on Mr. Weaver's alleged theft of services for the electricity used by charging his phone. Mr. Weaver testified that he had visited the home in the past, and although he had not spoken with his friends in at least nine months, he would not have entered if he knew they no longer lived there.

¶5 The parties agreed to instruct the jury on the lesser included offense of criminal trespass in the first degree. Specifically, the to-convict instruction (Instruction No. 13) provided:

To convict the defendant of the crime of criminal trespass in the first degree, each of the following elements of the crime must be proved beyond a reasonable doubt:

(1) That on or about August 19, 2017, the defendant knowingly entered or remained in a building;

(2) That the defendant knew that the entry or remaining was unlawful ; and

(3) That this act occurred in the State of Washington.

Clerk's Papers (CP) at 47 (emphasis added). Instruction No. 8 defined "entry or remaining unlawfully":

A person enters or remains unlawfully in or upon premises when he is not then licensed, invited, or otherwise privileged to so enter or remain.

CP at 42. These instructions were supplemented by Instruction No. 14, defining "knowledge":

A person knows or acts knowingly or with knowledge with respect to a fact, circumstance, or[ ] result when he is aware of that fact, circumstance, or result. It is not necessary that the person know that the fact, circumstance, or result is defined by law as being unlawful or an element of a crime.

CP at 48 (emphasis added). All instructions, besides Instruction No. 13, were offered by the prosecution.

¶6 The jury acquitted Mr. Weaver of residential burglary but convicted him of first degree criminal trespass. Mr. Weaver argues on appeal that the definition of knowledge instruction (Instruction No. 14) contradicted the to-convict instruction for first degree criminal trespass (Instruction No. 13), resulting in the State being relieved of its burden to prove Mr. Weaver subjectively knew his entry into the apartment was unlawful beyond a reasonable doubt. State v. Weaver , No. 51734-5-II, slip op. at 6, 2019 WL 10097571 (Wash. Ct. App. Nov. 5, 2019) (unpublished), http://www.courts.wa.gov/opinions/pdf/D2%2051734-5-II%20Unpublished%20Opinion.pdf. In its initial opinion, Division Two of the Court of Appeals declined to consider Mr. Weaver's arguments regarding the jury instructions, finding that appellate counsel did not argue the issue was reviewable on appeal. Division Two also found that Mr. Weaver was precluded from raising the instructional issue on appeal because trial counsel allegedly invited the error by proposing the to-convict instruction for the lesser included offense of criminal trespass.

¶7 Mr. Weaver filed a motion for reconsideration, requesting that Division Two reconsider both bases for declining to review the jury instructions. Division Two granted the motion in part, deleting the portion of the opinion stating that Mr. Weaver failed to raise the issue on appeal for the first time under RAP 2.5(a)(3) in his briefing, but declined to address the argument on the invited error doctrine.

II. ISSUE PRESENTED

¶8 Whether the instruction defining "knowledge" conflicts with the "to-convict" instruction for criminal trespass, relieving the State of its burden to prove that Mr. Weaver knew his entry or remaining was unlawful?

III. ANALYSIS

A. The Invited Error Doctrine Does Not Apply

¶9 We review alleged errors in jury instructions de novo. State v. Barnes , 153 Wash.2d 378, 382, 103 P.3d 1219 (2005). However, the Court of Appeals declined to review this issue based on the invited error doctrine. Weaver, No. 51734-5-II, slip op. at 8-9; State v. Armstrong , 69 Wash. App. 430, 434, 848 P.2d 1322 (1993) (quoting State v. Young , 63 Wash. App. 324, 330, 818 P.2d 1375 (1991) ), review denied , 122 Wash.2d 1005, 859 P.2d 602 (1993). Under this doctrine, "even where constitutional rights are involved, we are precluded from reviewing jury instructions when the defendant has proposed an instruction or agreed to its wording." State v. Winings , 126 Wash. App. 75, 89, 107 P.3d 141 (2005). Therefore, we must determine whether this doctrine applies.

¶10 The invited error doctrine does not apply here because Mr. Weaver did not propose the challenged jury instruction. As the record reflects, it was the prosecution that "provided proposed jury instructions" to the court and included what the defense proposed, "which would be the lesser included" offense of criminal trespass, Instruction No. 13. Tr. of Proceedings (Mar. 21, 2018) at 6. If Mr. Weaver was assigning error to Instruction No. 13, he would certainly be precluded by the invited error doctrine. Instead, he assigns error to Instruction No. 14, the definitional instruction for "knowledge" that was proposed by the State, thereby rendering the invited error doctrine inapplicable. Because the invited error doctrine does not apply, we proceed to the merits of Mr. Weaver's claim.

B. The Jury Instructions When Read as a Whole Are Clear

¶11 Jury instructions are foundational in our criminal proceedings. Jury instructions that fail to inform the jury of an element of an offense relieve the State of its burden of proof. Such instructions constitute manifest constitutional error that may be raised for the first time on appeal. RAP 2.5(a)(3) ; State v. Stein , 144 Wash.2d 236, 240-41, 27 P.3d 184 (2001). Accordingly, Mr. Weaver's issue is properly before this court. RAP 2.5(a)(3).

¶12 "To satisfy the constitutional demands of a fair trial, the jury instructions, when read as a whole, must correctly tell the jury of the applicable law, not be misleading, and permit the defendant to present his theory of the case." State v. O'Hara , 167 Wash.2d 91, 105, 217 P.3d 756 (2009) (citing State v. Mills , 154 Wash.2d 1, 7, 109 P.3d 415 (2005) ). "The standard for clarity in a jury instruction is higher than for a statute; while we have been able to resolve ambiguous wording of [statutes] via statutory construction, a jury lacks such interpretive tools and thus requires a manifestly clear instruction." State v. LeFaber , 128 Wash.2d 896, 902, 913 P.2d 369 (1996) (citing State v. Allery , 101 Wash.2d 591, 595, 682 P.2d 312 (1984) ), abrogated by O'Hara , 167 Wash.2d 91, 217 P.3d 756. As a result, the instructions, when read as a whole, must make the relevant legal standard " ‘ "manifestly apparent to the average juror." ’ " Id . at 900, 913 P.2d 369 (internal quotation marks omitted) (quoting Allery , 101 Wash.2d at 595, 682 P.2d 312 (quoting State v. Painter , 27 Wash. App. 708, 713, 620 P.2d 1001 (1980), review denied , 95 Wash.2d 1008, 1981 WL 190850 (1981) )). " ‘In normal usage "manifest" means unmistakable, evident or indisputable, as distinct from obscure, hidden or concealed.’ " State v. Ackerman , 11 Wash. App. 2d 304, 312-13, 453 P.3d 749 (2019) (quoting State v. Lynn , 67 Wash. App. 339, 345, 835 P.2d 251 (1992) (citing State v. Taylor , 83 Wash.2d 594, 596, 521 P.2d 699 (1974) )).

¶13 Here, the to-convict instruction required the jury to find that Mr. Weaver "knew that the entry or remaining was unlawful." CP at 47 (Instruction No. 13). This instruction echoes the applicable criminal statute, RCW 9A.52.070 : "A person is guilty of criminal trespass in the first degree if he or she knowingly enters or remains...