IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 79869-3-I
Respondent, DIVISION ONE v. UNPUBLISHED OPINION JAIME KRISTIN SCHULTZ,
Appellant.
LEACH, J. — Jaime Schultz appeals her conviction for one count of criminal
trespass in the second degree and the imposition of discretionary community
custody fees. Schultz argues the jury instructions misstated the law, confused the
jury, and impermissibly reduced the State’s burden of proof. We agree the
instructions did not accurately describe the State’s burden of proof. We reverse
and remand for a new trial. Schultz also argues, and the State concedes, the trial
court should not have imposed community custody fees. We agree and remand
to strike the community custody fees.
BACKGROUND
On March 31, 2017, Mary Land saw Jaime Schultz walking around and
looking at houses in her North Seattle neighborhood. Land saw Schultz walk on
to Susannah Everlund’s property while looking through the house’s basement
windows. Everlund’s house had a “for sale” sign in the yard, but she still occupied
the house. Land thought Schultz could be looking to steal packages from her
Citations and pin cites are based on the Westlaw online version of the cited material. 79869-3-I/2
neighbor’s front doors and called 911. Land told the dispatcher that Schultz had
looked on porches and in windows, but she had not tried to open the doors.
Everlund was driving home from an outing while Land was on the phone
with the dispatcher. Land flagged Everlund down and said, “There’s a woman
prowling in your backyard. And I watched her. I just called 911.”
Everlund got out of her car, looked down the side of her house, and saw
Schultz walking toward her from behind the house. Everlund asked Schultz if she
could help her. Schultz responded, “I’m just looking at the house.” Everlund said,
“we don’t have any open house today.” Then, Schultz started to walk away from
the house and proceeded down the street.
Seattle Police officers arrived at Everlund’s house. Everlund and Land
pointed the officers in Schultz’s direction. The officers “immediately detained”
Schultz and “she was very cooperative.” Schultz told the officers she was looking
at the house because it was for sale and denied any intent to break into it. The
officers arrested Schultz for criminal trespass.
Land testified that it was reasonable for people to look at houses for sale
and to grab fliers. She said that while most people would not look inside a home
for sale, because that would be intrusive, some people might take a quick look
inside a window.
Everlund testified that no one else had entered her property while it was for
sale. Everlund agreed there was no sign that Schultz damaged or tampered with
the house. No one testified that Schultz attempted to break into the house.
2 79869-3-I/3
The jury found Schultz guilty on all four counts of second degree identity
theft unrelated to the trespass charge and one count of second degree criminal
trespass. At a bench trial, the court found Schultz guilty of two counts of bail
jumping.
Schultz appeals her conviction of criminal trespass and the imposition of
discretionary community custody fees.
ANALYSIS
Instructional Error
Schultz contends the jury instructions relating to the criminal trespass
charge were confusing and it also misstated the legal standard. The State
responds that because defense counsel did not object to the challenged jury
instructions at trial, this court should not consider her claims. RAP 2.5(a) provides
that we “may refuse to review any claim of error which was not raised in the trial
court,” unless the appellant can show there is an error and that error is a “manifest
error affecting a constitutional right.”1 Because Schultz did not object to the jury
instructions,2 we must determine whether Schultz’s instruction claims involve a
“manifest error affecting a constitutional right.”3
We do not “assume the alleged error is of constitutional magnitude.”4 The
appellant must identify a constitutional error and show how that error affected their
1 State v. O’Hara, 167 Wn.2d 91, 98, 217 P.3d 756 (2009). 2 The State asserts Schultz’s counsel objected to the middle paragraph of Jury Instruction Number 8, but the record shows it was the State that objected to the middle paragraph. 3 RAP 2.5(a)(3); O’Hara, 167 Wn.2d at 98. 4 O’Hara, 167 Wn.2d at 98-99.
3 79869-3-I/4
rights.5 “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.”6 “Failure
to properly instruct the jury on an element of a charged crime is an error of
constitutional magnitude which may be raised for the first time on appeal.”7 But, if
“the instructions properly inform the jury of the elements of the charged crime, any
error in further defining terms used in the elements is not of constitutional
magnitude.”8
If an appellant shows that an error of constitutional magnitude occurred, we
next determine whether the error was manifest, which requires a showing of actual
prejudice.9 To do this, the appellant must show the error had practical and
identifiable consequences at trial.10 To determine whether the consequences are
practical and identifiable, we place ourselves “in the shoes of the trial court to
ascertain whether, given what the trial court knew at that time, the court could have
corrected the error.”11
If we determine an error is manifest, we conduct a harmless error analysis. 12
“[T]he exception does not help a defendant when the asserted constitutional error
5 State v. Gordon, 172 Wn.2d 671, 676, 260 P.3d 884 (2011). 6 O’Hara, 167 Wn.2d at 105 (citing State v. Mills, 154 Wn.2d 1, 7, 109 P.3d 415 (2005)). 7 State v. Roggenkamp, 153 Wn.2d 614, 620, 106 P.3d 196 (2005) (citing State v. Stein, 144 Wn.2d 236, 241, 27 P.3d 184 (2001)). 8 State v. Stearns, 119 Wn.2d 247, 250, 830 P.2d 355 (1992). 9 O’Hara, 167 Wn.2d at 99. 10 Gordon, 172 Wn.2d at 676. 11 O’Hara, 167 Wn.2d at 100. 12 O’Hara, 167 Wn.2d at 105; U.S. CONST. amend. XIV; Const. art. I, § 22.
4 79869-3-I/5
is harmless beyond a reasonable doubt.”13 In a criminal case, an appellate court
presumes a constitutional error prejudiced the defendant and the prosecution has
the burden of showing that the constitutional error was harmless.14
Two cases illustrate application of the harmless error rule. In State v.
O’Hara, the Washington Supreme Court determined the trial court’s failure to
include the entire statutory definition of malice in the jury instruction was not a
manifest error affecting a constitutional right because the State was not relieved of
its burden of proving the elements of the crime and disproving the elements of the
defense.15
In State v. Ackerman, the petitioner alleged “the jury instructions potentially
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IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 79869-3-I
Respondent, DIVISION ONE v. UNPUBLISHED OPINION JAIME KRISTIN SCHULTZ,
Appellant.
LEACH, J. — Jaime Schultz appeals her conviction for one count of criminal
trespass in the second degree and the imposition of discretionary community
custody fees. Schultz argues the jury instructions misstated the law, confused the
jury, and impermissibly reduced the State’s burden of proof. We agree the
instructions did not accurately describe the State’s burden of proof. We reverse
and remand for a new trial. Schultz also argues, and the State concedes, the trial
court should not have imposed community custody fees. We agree and remand
to strike the community custody fees.
BACKGROUND
On March 31, 2017, Mary Land saw Jaime Schultz walking around and
looking at houses in her North Seattle neighborhood. Land saw Schultz walk on
to Susannah Everlund’s property while looking through the house’s basement
windows. Everlund’s house had a “for sale” sign in the yard, but she still occupied
the house. Land thought Schultz could be looking to steal packages from her
Citations and pin cites are based on the Westlaw online version of the cited material. 79869-3-I/2
neighbor’s front doors and called 911. Land told the dispatcher that Schultz had
looked on porches and in windows, but she had not tried to open the doors.
Everlund was driving home from an outing while Land was on the phone
with the dispatcher. Land flagged Everlund down and said, “There’s a woman
prowling in your backyard. And I watched her. I just called 911.”
Everlund got out of her car, looked down the side of her house, and saw
Schultz walking toward her from behind the house. Everlund asked Schultz if she
could help her. Schultz responded, “I’m just looking at the house.” Everlund said,
“we don’t have any open house today.” Then, Schultz started to walk away from
the house and proceeded down the street.
Seattle Police officers arrived at Everlund’s house. Everlund and Land
pointed the officers in Schultz’s direction. The officers “immediately detained”
Schultz and “she was very cooperative.” Schultz told the officers she was looking
at the house because it was for sale and denied any intent to break into it. The
officers arrested Schultz for criminal trespass.
Land testified that it was reasonable for people to look at houses for sale
and to grab fliers. She said that while most people would not look inside a home
for sale, because that would be intrusive, some people might take a quick look
inside a window.
Everlund testified that no one else had entered her property while it was for
sale. Everlund agreed there was no sign that Schultz damaged or tampered with
the house. No one testified that Schultz attempted to break into the house.
2 79869-3-I/3
The jury found Schultz guilty on all four counts of second degree identity
theft unrelated to the trespass charge and one count of second degree criminal
trespass. At a bench trial, the court found Schultz guilty of two counts of bail
jumping.
Schultz appeals her conviction of criminal trespass and the imposition of
discretionary community custody fees.
ANALYSIS
Instructional Error
Schultz contends the jury instructions relating to the criminal trespass
charge were confusing and it also misstated the legal standard. The State
responds that because defense counsel did not object to the challenged jury
instructions at trial, this court should not consider her claims. RAP 2.5(a) provides
that we “may refuse to review any claim of error which was not raised in the trial
court,” unless the appellant can show there is an error and that error is a “manifest
error affecting a constitutional right.”1 Because Schultz did not object to the jury
instructions,2 we must determine whether Schultz’s instruction claims involve a
“manifest error affecting a constitutional right.”3
We do not “assume the alleged error is of constitutional magnitude.”4 The
appellant must identify a constitutional error and show how that error affected their
1 State v. O’Hara, 167 Wn.2d 91, 98, 217 P.3d 756 (2009). 2 The State asserts Schultz’s counsel objected to the middle paragraph of Jury Instruction Number 8, but the record shows it was the State that objected to the middle paragraph. 3 RAP 2.5(a)(3); O’Hara, 167 Wn.2d at 98. 4 O’Hara, 167 Wn.2d at 98-99.
3 79869-3-I/4
rights.5 “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.”6 “Failure
to properly instruct the jury on an element of a charged crime is an error of
constitutional magnitude which may be raised for the first time on appeal.”7 But, if
“the instructions properly inform the jury of the elements of the charged crime, any
error in further defining terms used in the elements is not of constitutional
magnitude.”8
If an appellant shows that an error of constitutional magnitude occurred, we
next determine whether the error was manifest, which requires a showing of actual
prejudice.9 To do this, the appellant must show the error had practical and
identifiable consequences at trial.10 To determine whether the consequences are
practical and identifiable, we place ourselves “in the shoes of the trial court to
ascertain whether, given what the trial court knew at that time, the court could have
corrected the error.”11
If we determine an error is manifest, we conduct a harmless error analysis. 12
“[T]he exception does not help a defendant when the asserted constitutional error
5 State v. Gordon, 172 Wn.2d 671, 676, 260 P.3d 884 (2011). 6 O’Hara, 167 Wn.2d at 105 (citing State v. Mills, 154 Wn.2d 1, 7, 109 P.3d 415 (2005)). 7 State v. Roggenkamp, 153 Wn.2d 614, 620, 106 P.3d 196 (2005) (citing State v. Stein, 144 Wn.2d 236, 241, 27 P.3d 184 (2001)). 8 State v. Stearns, 119 Wn.2d 247, 250, 830 P.2d 355 (1992). 9 O’Hara, 167 Wn.2d at 99. 10 Gordon, 172 Wn.2d at 676. 11 O’Hara, 167 Wn.2d at 100. 12 O’Hara, 167 Wn.2d at 105; U.S. CONST. amend. XIV; Const. art. I, § 22.
4 79869-3-I/5
is harmless beyond a reasonable doubt.”13 In a criminal case, an appellate court
presumes a constitutional error prejudiced the defendant and the prosecution has
the burden of showing that the constitutional error was harmless.14
Two cases illustrate application of the harmless error rule. In State v.
O’Hara, the Washington Supreme Court determined the trial court’s failure to
include the entire statutory definition of malice in the jury instruction was not a
manifest error affecting a constitutional right because the State was not relieved of
its burden of proving the elements of the crime and disproving the elements of the
defense.15
In State v. Ackerman, the petitioner alleged “the jury instructions potentially
diluted the State’s burden by incorrectly conveying the elements of self-defense.” 16
We determined this was an error affecting a constitutional right.17 We also
determined the petitioner had shown the error had a practical and identifiable
consequence on the jury’s deliberations, so it was a manifest error affecting a
constitutional right that was reviewable despite being raised for the first time on
appeal.18 Because the instructions did not make the defense manifestly apparent
to the jury, we could not find the error harmless. 19
13 Salas, 127 Wn.2d 173, 182, 897 P.2d 1246 (1995). 14 State v. Coristine, 177 Wn.2d 370, 380, 300 P.3d 400 (2013). 15 O’Hara, 167 Wn.2d at 104-108. 16 11 Wn. App. 2d 304, 310, 453 P.3d 749 (2019). 17 Ackerman, 11 Wn. App. 2d at 309. 18 Ackerman, 11 Wn. App. 2d at 309. 19 Ackerman, 11 Wn. App. 2d at 314.
5 79869-3-I/6
RCW 9A.52.080(1) provides “A person is guilty of criminal trespass in the
second degree if he or she knowingly enters or remains unlawfully in or upon
premises of another.” RCW 9A.52.090(3) provides a defense to criminal trespass
where “[t]he actor reasonably believed that the owner of the premises, or other
person empowered to license access thereto, would have licensed him or her to
enter or remain.” When a defendant asserts their entry was permissible under
RCW 9A.52.090(3), the State has the burden of proving beyond a reasonable
doubt the defendant lacked a license to enter because this defense negates an
element of the crime of trespass.20
Jury instruction number 18 told the jury what it must find to convict Schultz
of criminal trespass. But, no instruction told the jury about the “reasonably
believed” statutory defense. And, no instruction told the jury of the State’s burden
to disprove this defense. Because the instructions relieved the State of its burden
of disproving the statutory defense, this instructional error is a manifest error
affecting a constitutional right that Schultz may raise for the first time on appeal.
Next, we consider whether under a harmless error analysis, the instructional
error was harmful and prejudicial. We find that it was.
“In order to hold that a jury instruction error was harmless, ‘we must
conclude beyond a reasonable doubt that the jury verdict would have been the
20 City of Bremerton v. Widell, 146 Wn.2d 561, 570, 51 P.3d 561 (2002); State v. R.H., 86 Wn. App. 807, 812, 939 P.2d 217 (1997).
6 79869-3-I/7
same absent the error.’”21 “An error in jury instructions is presumed prejudicial
unless it affirmatively appears to be harmless.” 22 The State bears the burden of
demonstrating harmlessness.23
The State does not explain why the evidence of the for sale sign does not
provide some evidence Schultz “reasonably believed” she was or would be
licensed to be on the property. Nor does the State address Land’s testimony that
sometimes people peer into windows of homes that are for sale. And, the State
does not address Everlund and the officer’s testimony that Schultz said she was
only looking at the house because it was for sale. The State contends Schultz
could not possibly believe she was invited or licensed to enter Everlund’s property,
and ignores the “otherwise privileged to so enter or remain” prong of the jury
instruction.
The evidence we have cited, with a proper instruction about the State’s
burden, could cause a reasonable juror to entertain doubt about whether Schultz
could have reasonably believed she was otherwise privileged to enter Everlund’s
property. So, the State has not shown beyond a reasonable doubt the instructional
error was harmless. We reverse and remand for a new trial.
21 State v. Bashaw, 169 Wn.2d 133, 146, 234 P.3d 195 (2010), overruled on other grounds by State v. Guzman Nunez, 174 Wn.2d 707, 285 P.3d 21 (2012) (citations omitted). 22 State v. Espinosa, 8 Wn. App. 2d 363, 363, 438 P.3d 582 (2019) (citing State v. Clausing, 147 Wn.2d 620, 628, 56 P.3d 550 (2002)). 23 State v. Barry, 183 Wn.2d 297, 303, 352 P.3d 161 (2015) (citing State v. Coristine, 177 Wn.2d 370, 380, 300 P.3d 400 (2013)).
7 79869-3-I/8
Because we reverse and remand, we decline to address Schultz’s other
claims of instructional error.
Discretionary Costs
Schultz contends, and the State concedes, the trial court improperly
imposed supervision fees because she is indigent. RCW 9.94A.703(2) states the
supervision fees are “waivable conditions.” The trial court stated it was imposing
the mandatory $500 victim penalty assessment and $100 DNA collection fee. But,
the judgment and sentence included the requirement that Schultz pay supervision
fees. So, we accept the State’s concession and remand to strike the supervision
fees from the judgment and sentence.
CONCLUSION
We reverse and remand on the issue of criminal trespass because we
cannot say that beyond a reasonable doubt the jury verdict would have been the
same absent the instructional error. And, we remand to strike the community
custody fees.
WE CONCUR: