Filed Washington State Court of Appeals Division Two
April 5, 2016 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II STATE OF WASHINGTON, No. 47377-1-II
Respondent,
v.
JEREMY TRENTON ROSE, UNPUBLISHED OPINION
Appellant.
MELNICK, J. — Jeremy Rose appeals his conviction of assault in the second degree with a
deadly weapon enhancement. We hold that the trial court erred in instructing the jury on defense
of property but the error was harmless; Rose invited the error on the deadly weapon enhancement
instruction; and the trial court did not err by failing to instruct the jury on an inferior degree crime.
We affirm Rose’s conviction.
FACTS
The State charged Rose with two counts of assault in the first degree, both with deadly
weapon enhancements, and resisting arrest. The jury found him guilty of one count of assault in
the second degree,1 while armed with a deadly weapon. It acquitted him of all other charges.
1 Assault in the second degree is an inferior degree crime of assault in the first degree. RCW 10.61.003. 47377-1-II
I. TRIAL TESTIMONY
Stephen and Susan Ortloff lived in Tacoma, but they had no residence.2 In December 2013,
they learned about a three-story abandoned building where other homeless people lived. The
Ortloffs moved into the top floor of the building and lived with another couple. Rose and Michael
Runyon also lived in the building.
Rose had recently turned 18 years old. He became homeless after he aged out of the foster
care system and his grandmother’s landlord evicted him from her home. In the first week of
November 2013, he found the abandoned building and began to live there. Rose lived in the second
floor apartment because it was cleaner than the rest of the building.
Although Stephen testified that at some point the Ortloffs moved into the second floor
apartment and shared the space with Rose, Rose denied it. Sometime near the end of December,
Rose left the building and traveled to Seattle to visit his brother. Susan testified that during this
period, the Ortloffs moved into the second floor apartment without Rose’s permission. Rose did
not return until January 1, 2014.
On January 1, 2014, the Ortloffs returned from grocery shopping and found the entrances
to the building barricaded shut. After they broke through the barricades and entered the building,
they found the door to the second floor apartment locked. Stephen left, grabbed a pick axe, and
broke the locks on the door. The Ortloffs pushed through the door and entered the apartment.
What happened next is in dispute. According to Stephen, the Ortloffs entered the apartment
and Rose stood inside with a stick. Stephen went into the back room to put the grocery bags away.
He returned from the back bedroom to hear Susan yelling that she had been stabbed. Stephen did
2 To avoid confusion, we will refer to the Ortloffs by their first names. We intend no disrespect.
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not see Rose stab Susan. Stephen attacked Rose, and after he realized that Rose stabbed him, the
Ortloffs ran out of the building. Stephen did not see a weapon during the altercation.
According to Susan, the Ortloffs exchanged some intense words with Rose through the
door before Stephen broke the locks and they entered the apartment. Rose yelled that he would
throw Susan out the second story window if she entered the room. Stephen broke through the door
and Susan entered the room with her bags. Susan turned around and saw something in Rose’s
hand that he used to stab her in the neck. She did not know what Rose used to stab her, but she
thought it was a pen. She denied having a weapon in her possession. She testified that Stephen
attacked Rose after Rose stabbed her.
According to Rose, when he returned to the building from visiting his brother, his
possessions were strewn about the apartment. Rose decided to lock the door and block it with a
couch. He heard the Ortloffs banging on the door and yelling. Rose was afraid, so he stayed quiet,
hoping they would leave. The Ortloffs threatened to kill Rose and take all of his belongings. The
Ortloffs broke through the door, Susan attacked Rose with a knife and he struggled to get it away
from her. He admitted taking the knife out of Susan’s hand and stabbing her once. Rose also
admitted that he intended to stab Susan. Stephen charged in and tackled Rose. Stephen began to
choke and punch Rose. Rose testified that he “let go of the knife after he attacked me, and I ended
up finding it on the floor, so I stabbed him or cut him in the arm.” 7 Report of Proceedings (RP)
at 660. Rose testified that he cut Stephen across the forehead. Stephen then punched Rose and
knocked him unconscious. When Rose awoke, the Ortloffs were gone. Rose went to the hospital
to take care of his injuries.
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Susan also went to the hospital for her injuries. Dr. Thomas Ferrer attended to Susan in
the emergency room. He diagnosed Susan with a stab wound and a “small amount of collapse” of
the lung. 5 RP at 379.
On January 3, 2014, Officer James Land arrested Rose. Land did not find a weapon on
Rose or in his belongings. Land testified that Rose had a black eye when he was arrested.
II. JURY INSTRUCTIONS
At trial, both Rose and the State proposed similar deadly weapon jury instructions, but
Rose’s instruction included an extra concluding sentence. The trial court used Rose’s proposed
instruction that reads as follows.
For purposes of a special verdict the State must prove beyond a reasonable doubt that the defendant was armed with a deadly weapon at the time of the commission of the crime charged in Counts One and Two and the lesser included crimes for those counts. A person is armed with a deadly weapon if, at the time of the commission of the crime, the weapon is easily accessible and readily available for offensive or defensive use. The State must prove beyond a reasonable doubt that there was a connection between the weapon and the defendant. The State must also prove beyond a reasonable doubt that there was a connection between the weapon and the crime. In determining whether these connections existed, you should consider, among other factors, the nature of the crime and the circumstances surrounding the commission of the crime, including the location of the weapon at the time of the crime and the type of weapon. A knife having a blade longer than three inches is a deadly weapon. A deadly weapon is an implement or instrument that has the capacity to inflict death and, from the manner in which it is used, is likely to produce or may easily produce death. Whether a knife having a blade less than three inches long is a deadly weapon is a question of fact that is for you to decide.
Clerk’s Papers (CP) at 112.
The State proposed two jury instructions, numbers 21 and 22, regarding the lawful use of
force in defense of property. The State argued that RCW 9A.16.020(3) supported giving the
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instructions and that although the instructions were not from the Washington Practice Pattern
Criminal Jury Instructions (WPIC), they were supported by case law.
Rose argued to the trial court that the instructions on defense of property should not be
provided to the jury because Rose was not requesting the instructions, and the instructions were
not supported by the evidence. Rose proposed that WPIC 17.023 be used to instruct the jury on
self-defense. Rose argued that he did not assert defense of property as a defense, and therefore,
the trial court should not instruct on it.
The trial court ruled in the State’s favor because the instructions were “kind of a catch-all
that includes self-defense against the person as well as the property.” 7 RP at 708. The trial court
agreed with the State that “to leave the instructions out of the instruction packet is just, again, to
invite the jury to speculate as to whether or not the defendant could use force in defense of what
he considered to be his apartment.” 7 RP at 712. The trial court stated, “I’m going to give both
21 and 22 since it further defines what force is lawful or not lawful.” 7 RP at 716. Jury instruction
21 states:
An individual’s use of force upon or toward another person is not lawful when it is used in preventing or attempting to prevent a malicious trespass or other malicious interference with real property or personal property that is not lawfully in the individual’s possession. Real property means the land itself and all buildings, structures, or improvements thereon. An individual is not lawfully in possession of real or personal property when he is not licensed, invited, or otherwise privileged to possess the property.
CP at 114. Jury instruction 22 states:
The use of deadly force or a deadly weapon is not lawful when it is used in preventing or attempting to prevent a malicious trespass or other malicious interference with real property or personal property. Deadly force is the intentional application of force through any means reasonably likely to cause death or serious physical injury.
3 11 WPIC 17.02, at 253 (2008).
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CP at 115. In addition to instructing the jury on defense of property, the trial court instructed the
jury on self-defense. Jury instruction 20 described when the use of force upon or toward another
person was lawful. It also instructed on other related issues of self-defense.
Rose requested the trial court include an instruction for the inferior degree crime of assault
in the third degree. The trial court denied his request, stating that it did not see the applicability of
assault in the third degree because there was
no criminal negligence here based on his testimony. And so I’m not going to give that instruction since this wasn’t criminal negligence. This was an intent to do exactly what he did, albeit his claim was self- defense, but there was no ambiguity in terms of his testimony as to what he was attempting to do. And it wasn’t like the knife slipped out of his hand or that was accidental, that he meant to stab her toe. There’s just no element of negligence that I could interpret in this case based on his testimony, and I’m going to respectfully decline to give those lesser includeds.
7 RP at 706.
The jury found Rose guilty of the inferior degree crime of assault in the second degree
while armed with a deadly weapon.
At sentencing, Rose filed a motion for a new trial based on the jury instructions and jurors’
questions4 that prejudiced his right to a fair trial; he argued they were essentially comments on the
evidence and affected the outcome of the trial. The trial court denied the motion, reasoning the
instructions stated the correct law as it exists in Washington. The trial court sentenced Rose to 25
months of confinement. Rose appeals.
4 The jurors asked questions about the definition of resisting arrest, a further definition for self- defense, and seeing an exhibit that showed the apartment’s layout.
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ANALYSIS
I. DEFENSE OF PROPERTY JURY INSTRUCTIONS
Rose argues that the trial court erred in instructing the jury with non-WPIC defense of
property instructions because they were improper under the facts, misleading, and incorrect
statements of the law. We agree that the trial court erred in instructing the jury on a defense not
requested by Rose, but we hold that the error was harmless.
A. Standard of Review
We review alleged errors of law in jury instructions de novo. State v. Dow, 162 Wn. App.
324, 330, 253 P.3d 476 (2011). “Generally, we review a trial court’s choice of jury instructions
for an abuse of discretion.” State v. Douglas, 128 Wn. App. 555, 561, 116 P.3d 1012 (2005). Jury
instructions are sufficient if substantial evidence supports them, they allow the parties to argue
their theories of the case, and, when read as a whole, they properly inform the jury of the applicable
law. State v. Clausing, 147 Wn.2d 620, 626, 56 P.3d 550 (2002). The precise wording of the
instructions is within the broad discretion of the court. See State v. Alexander, 7 Wn. App. 329,
336, 499 P.2d 263 (1972). It is not error for a trial court to refuse a specific instruction when a
more general instruction adequately explains the law and allows each party to argue its case theory.
State v. Portrey, 102 Wn. App. 898, 902, 10 P.3d 481 (2000).
B. The Trial Court Erred By Giving Instructions 21 and 22
“When read as a whole, jury instructions must make the legal standard ‘manifestly apparent
to the average juror.’” State v. Bland, 128 Wn. App. 511, 514, 116 P.3d 428 (2005) (quoting State
v. LeFaber, 128 Wn.2d 896, 900, 913 P.2d 369 (1996)).
Rose opposed the instructions not because they were incorrect statements of the law, but
because they would confuse the jury and did not support his asserted defense. Rose did not claim
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defense of property and argued to the trial court that instructing the jury on that defense would
lead to confusion. The trial court gave the instructions because it did not “want the jury to think
that somehow that they can infer he was defending his personal property and that was okay.” 7
RP at 713. Rose made it abundantly clear in closing argument to the jury that he was asserting
self-defense as a defense and not defense of property. We hold that the trial court erred by
instructing the jury on a defense theory that Rose did not assert and did not argue.
C. Harmless Error
The State argues that if the trial court erred in instructing the jury with instructions 21 and
22, any error was harmless. We agree.
There are two standards that can be employed when determining if trial court errors relating
to jury instructions are harmless. Under the constitutional harmless error standard, an error in jury
instructions is harmless if within the entire context of the record, it is harmless beyond a reasonable
doubt. State v. Grimes, 165 Wn. App. 172, 187, 267 P.3d 454 (2011). “To find an error harmless
beyond a reasonable doubt, an appellate court must find that the alleged instructional error did not
contribute to the verdict obtained.” Grimes, 165 Wn. App. at 187-88. “In deciding whether the
error contributed to the verdict and whether it is harmless, the court must ‘thoroughly examine the
record’ and may consider how the case is argued to the jury.” State v. Johnson, 116 Wn. App.
851, 857, 68 P.3d 290 (2003) (quoting State v. Brown, 147 Wn.2d 330, 341, 58 P.3d 889 (2002)).
Under the nonconstitutional harmless error standard, an error requires reversal only if there is a
reasonable probability that the error materially affected the outcome of the trial. State v. Gower,
179 Wn.2d 851, 854-55, 321 P.3d 1178 (2014).
The State proposes that we utilize the constitutional harmless error standard. Because this
standard benefits Rose, and assuming, but not deciding that the instructional error was
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constitutional in nature, we employ the standard the State proposes. We conclude that any errors
in the jury instructions were harmless because, beyond a reasonable doubt, any error did not impact
the jury’s verdict.
In closing, the State focused on the defense of property, arguing that Rose “had no right to
use deadly force to defend property that didn’t belong to him.” 7 RP at 728. The State cited to
jury instructions 21 and 22: “You can’t use force to defend property that doesn’t belong to you . .
. [a]nd the one beyond that is you can’t use deadly force to protect property either.” 7 RP at 738.
The State reiterated a number of times that Rose could not “use force to defend that apartment. It
didn’t belong to him.” 7 RP at 752. However, the State also focused on the self-defense instruction
that Rose’s use of force was not reasonable and therefore, was not a lawful use of force.
Conversely, in closing, Rose argued that the State “talked a lot about property versus
persons. What the State is saying [is] that [Rose] had no right to use force against the Ortloffs
because it was his intention to protect property and property that wasn’t his.” 7 RP at 766. The
defense unequivocally told the jury that although Rose wanted to keep the Ortloffs out of the
building, “that doesn’t mean that the force that was being used [by Rose] was . . . to protect
property.” 7 RP at 767. The defense further argued that Rose had a right to defend himself and
“defend his person.” 7 RP at 767. Rose made it clear to the jury that he acted in self-defense and
not in defense of property.
Because Rose made it abundantly clear to the jury in his closing argument that he did not
assert the defense of property, he only asserted that of self-defense, any instructional error was
harmless. In addition, both Rose and the State argued that Rose did not act in defense of property.
Therefore, both parties argued to the jury that jury instructions 21 and 22 did not apply. Rose fails
to show that he suffered prejudice. The trial court’s error is harmless beyond a reasonable doubt.
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II. STATEMENT OF ADDITIONAL GROUNDS (SAG) CLAIMS
A. Jury Instruction 19 – Deadly Weapon
Rose asserts in his SAG that the trial court erred by instructing the jury on the deadly
weapon enhancement in instruction 19 for various reasons. Because Rose proposed the instruction
given by the trial court, we are precluded from reviewing the assertion.
The Washington Supreme Court has held, “[a] party may not request an instruction and
later complain on appeal that the requested instruction was given.” State v. Boyer, 91 Wn.2d 342,
345, 588 P.2d 1151 (1979). Although a “strict rule,” we “have rejected the opportunity to adopt a
more flexible approach.” State v. Studd, 137 Wn.2d 533, 547, 973 P.2d 1049 (1999). Under the
invited error 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 Wn. App. 75, 89, 107 P.3d 141 (2005).
Here, the trial court instructed the jury according to the instruction Rose proposed and
invited error precludes our review.
B. Inferior Degree Crime Instruction
Rose asserts that the trial court erred in failing to give his proposed instruction on the
inferior degree crime of assault in the third degree. We disagree.
In State v. Workman, 90 Wn.2d 443, 447-48, 584 P.2d 382 (1978), the Washington
Supreme Court “set forth a two-prong test to determine whether a party is entitled to an instruction
on a lesser included offense under RCW 10.61.006.”5 State v. Condon, 182 Wn.2d 307, 316, 343
5 The parties argued the case in terms of lesser included offense rather than inferior degree offense. Although the analysis differs when a trial court considers a request for an instruction on an inferior degree offense and when it considers a request for a lesser included offense, the distinction between lesser included and inferior degree offense instructions is not, however, significant in this case. See State v. Fernandez-Medina, 141 Wn.2d 448, 454-55, 6 P.3d 1150 (2000). “This is so because
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P.3d 357 (2015). An instruction on an inferior degree offense is properly administered when: “(1)
the statutes for both the charged offense and the proposed inferior degree offense proscribe but
one offense; (2) the information charges an offense that is divided into degrees, and the proposed
offense is an inferior degree of the charged offense; and (3) there is evidence that the defendant
committed only the inferior offense.” State v. Fernandez-Medina, 141 Wn.2d 448, 454, 6 P.3d
1150 (2000) (internal quotation marks omitted) (quoting State v. Peterson, 133 Wn.2d 885, 891,
948 P.2d 381 (1997)). “The purpose of this test is to ensure that there is evidence to support the
giving of the requested instruction. If interpreted too literally, though, the factual test would
impose a redundant and unnecessary requirement because all jury instructions must be supported
by sufficient evidence.” Fernandez-Medina, 141 Wn.2d at 455. The party requesting the
instruction is only entitled to the instruction when both prongs are satisfied. Condon, 182 Wn.2d
at 316.
Both Rose and the State agree that the legal prong was satisfied. Therefore, we must
determine whether the factual prong was satisfied. “When evaluating whether the evidence
supports an inference that the lesser crime was committed, courts view the evidence in the light
most favorable to the party who requested the instruction.” State v. Henderson, 182 Wn.2d 734,
742, 344 P.3d 1207 (2015). The rule is particularly important in cases “where the numerous
witness accounts varied widely and often conflicted with one other.” Henderson, 182 Wn.2d at
742. “Our case law is clear, however, that the evidence must affirmatively establish the
the test for determining if a party is entitled to an instruction on an inferior degree offense differs from the test for entitlement to an instruction on a lesser included offense only with respect to the legal component of the test.” Fernandez-Medina, 141 Wn.2d at 455. Here, Rose and the State each concede that the legal component of the test is satisfied. Therefore, as in Fernandez-Medina, we focus on the factual prong as stated in Workman, 90 Wn.2d 443.
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defendant’s theory of the case—it is not enough that the jury might disbelieve the evidence
pointing to guilt.” Fernandez-Medina, 141 Wn.2d at 456.
We review a trial court’s decision regarding the second prong of the Workman test for
abuse of discretion. Henderson, 182 Wn.2d at 743. A court abuses its discretion when its decision
is based on the incorrect legal standard. Henderson, 182 Wn.2d at 743.
Rose’s proposed jury instruction on assault in the third degree correctly defined the
elements of the crime: “A person commits the crime of assault in the third degree when he, with
criminal negligence, causes bodily harm to another person by means of a weapon or other
instrument or thing likely to produce bodily harm.” CP at 74. Rose’s proposed instruction also
defined criminal negligence from WPIC 10.04, at 212 (2014) as:
A person is criminally negligent or acts with criminal negligence when he or she fails to be aware of a substantial risk that a wrongful act may occur and this failure constitutes a gross deviation from the standard of care that a reasonable person would exercise in the same situation. When criminal negligence as to a particular result is required to establish an element of a crime, the element is also established if a person acts intentionally or knowingly or recklessly as to that result.
CP at 75.
The trial court determined that because the elements of assault in the third degree under the
proposed alternative included a different mens rea from either of assault in the first or second
degree, no factual basis existed to give the instruction. Rose admitted to stabbing Susan. He also
admitted that he intended to stab her. Even when viewing the evidence in the light most favorable
to Rose, no factual basis supported that he acted with negligence. Therefore, the trial court did not
abuse its discretion by failing to instruct on the inferior degree crime.
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We affirm the trial court.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2.06.040, it is so ordered.
Melnick, J.
We concur:
Maxa, J.
Sutton, J.