Filed Washington State Court of Appeals Division Two
December 20, 2022
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II STATE OF WASHINGTON, No. 56189-1-II
Respondent,
v.
LARISA JEAN DIETZ, UNPUBLISHED OPINION
Appellant.
VELJACIC, J. — Larisa Dietz appeals her conviction for attempted murder in the second
degree and assault in the first degree. Dietz argues that the jury instructions failed to include the
requisite mental state that the jury must consider in determining culpability. Dietz contends that
this relieved the State of its obligation to prove every essential element of the crime.
We hold that the doctrine of invited error prevents Dietz from appealing the jury instruction
because Dietz was the one who proposed the instruction language she now complains of.
Accordingly, we affirm.
FACTS
On October 8, 2019, Larisa Dietz was visiting with Ricky McGowan in the Sunbelt
Apartments where they both resided. Neighbors called 911 after hearing McGowan call for help.
Firefighters and paramedics were dispatched to the scene, some of whom were familiar with
McGowan because they had previously responded to help him for falling out of his wheelchair and
cardiac issues. Upon entering the apartment, the first responders found Dietz with her right arm
around McGowan’s neck and her left hand reaching into his mouth. As the paramedics approached 56189-1-II
Dietz and McGowan, Dietz began grabbing at McGowan’s throat while yelling, “’I am the
victim.’” Clerk’s Papers (CP) at 188. The paramedics grabbed Dietz by the arms and pinned her
to the ground. The paramedics found that McGowan had numerous lacerations on his neck, and
police officers collected a two-inch knife covered in blood from within Dietz’s reach. Dietz did
not appear to have any injuries. Dietz only has sporadic memories of what occurred that day.
The State charged Dietz with attempted murder in the second degree and assault in the first
degree, along with a deadly weapon enhancement and vulnerable victim aggravating factor for
each count. A competency evaluation found Dietz competent to stand trial. Two psychologists
testified to her diminished capacity. They agreed that Dietz had several mental health diagnoses,
including borderline personality disorder, substance abuse disorder, and post-traumatic stress
disorder. However, the experts disagreed as to whether she had the capacity to form the requisite
intent to commit the charged crimes.
The defense proposed a diminished capacity jury instruction that read:
Evidence of mental illness or disorder may be taken into consideration in determining whether the defendant had the ability to form the intent to commit the crimes of attempted murder in the second degree, assault in the first degree, assault in the second degree, or assault in the third degree.
CP at 43 (emphasis added). Defense counsel referenced Washington Pattern Jury Instructions:
Criminal 18.20 as the source of the proposed instruction. 11 WASHINGTON PRACTICE:
WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 18.20, at 315 (5th ed. 2021) (WPIC).
WPIC 18.20 reads: “Evidence of mental illness or disorder may be taken into consideration in
determining whether the defendant had the [capacity] [ability] to form (fill in requisite mental
state).”
After discussions between the parties, the court agreed to give Dietz’s version of the
instruction with only slight modifications. The diminished capacity instruction ultimately given
2 56189-1-II
to the jury (hereinafter instruction 26) states: “Evidence of mental illness or disorder may be taken
into consideration in determining whether the defendant had the capacity to form the intent to
commit the crimes of attempted murder in the second degree and assault in the first degree or
assault in the second degree.” CP at 686 (emphasis added).
The jury found Dietz guilty as charged. Dietz appeals.
ANALYSIS
I. INVITED ERROR
Dietz argues that she received an unfair trial because the diminished capacity jury
instruction failed to include the specific intent that the State was required to prove, thereby
relieving the State of its burden to prove every element of the charged crimes. The State argues
that the doctrine of invited error bars review of Dietz’s claim that the diminished capacity
instruction was erroneous, because Dietz proposed the language that was ultimately given to the
jury. We agree with the State.
A. Legal Principles
We review de novo alleged errors of law in jury instructions. State v. Nelson, 191 Wn.2d
61, 69, 419 P.3d 410 (2018). A jury instruction is erroneous if it omits or misstates the law thereby
relieving the State of its burden to prove every element of the crime charged. Id. Under the invited
error doctrine, even where constitutional rights are involved, an appellate court is precluded from
reviewing jury instructions when the defendant has proposed the instruction. State v. Weaver, 198
Wn.2d 459, 465, 496 P.3d 1183 (2021); see also State v. Bradley, 141 Wn.2d 731, 736, 10 P.3d
358 (2000). When a defendant proposes an instruction that is identical to the instruction the trial
court gives, the invited error doctrine bars us from reversing the conviction because of an error in
that jury instruction. State v. Summers, 107 Wn. App. 373, 381, 28 P.3d 780 (2001). A party may
3 56189-1-II
not request an instruction and later complain on appeal that the requested instruction was given.
State v. Henderson, 114 Wn.2d 867, 870, 792 P.2d 514 (1990). Even if error was committed, of
whatever kind, if it was at the defendant’s invitation the defendant is precluded from claiming on
appeal that it is reversible error. State v. Studd, 137 Wn.2d 533, 546, 973 P.2d 1049 (1999). “This
holds true even if the defendant merely requests a standard [WPIC] approved by the courts.”
Summers, 107 Wn. App. at 381. Invited error is a “strict rule” to be applied whenever the
defendant’s actions, at least in part, cause the error. Id. at 381-82.
B. The Doctrine of Invited Error Bars Review of Dietz’s Claim that the Diminished Capacity Instruction was Erroneous
In this case, Dietz proposed the challenged diminished capacity instruction that was given
to the jury, which she now takes issue with on appeal. Dietz argues that the trial was unfair because
the diminished capacity jury instruction failed to include “specific intent,” which in turn relieved
the State of its burden to prove every element of the charged crimes. Br. of Appellant at 6-7.
The instruction given to the jury is based on WPIC 18.20, which reads as follows:
“[e]vidence of mental illness or disorder may be taken into consideration in determining whether
the defendant had the [capacity] [ability] to form (fill in requisite mental state).”
Dietz’s proposed instruction selected “ability” from the bracketed options available in
WPIC 18.20 and filled in the requisite mental state as “the intent to commit the crimes of attempted
murder in the first degree, assault in the first degree, assault in the second degree or assault in the
third degree.” CP at 43.
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Filed Washington State Court of Appeals Division Two
December 20, 2022
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II STATE OF WASHINGTON, No. 56189-1-II
Respondent,
v.
LARISA JEAN DIETZ, UNPUBLISHED OPINION
Appellant.
VELJACIC, J. — Larisa Dietz appeals her conviction for attempted murder in the second
degree and assault in the first degree. Dietz argues that the jury instructions failed to include the
requisite mental state that the jury must consider in determining culpability. Dietz contends that
this relieved the State of its obligation to prove every essential element of the crime.
We hold that the doctrine of invited error prevents Dietz from appealing the jury instruction
because Dietz was the one who proposed the instruction language she now complains of.
Accordingly, we affirm.
FACTS
On October 8, 2019, Larisa Dietz was visiting with Ricky McGowan in the Sunbelt
Apartments where they both resided. Neighbors called 911 after hearing McGowan call for help.
Firefighters and paramedics were dispatched to the scene, some of whom were familiar with
McGowan because they had previously responded to help him for falling out of his wheelchair and
cardiac issues. Upon entering the apartment, the first responders found Dietz with her right arm
around McGowan’s neck and her left hand reaching into his mouth. As the paramedics approached 56189-1-II
Dietz and McGowan, Dietz began grabbing at McGowan’s throat while yelling, “’I am the
victim.’” Clerk’s Papers (CP) at 188. The paramedics grabbed Dietz by the arms and pinned her
to the ground. The paramedics found that McGowan had numerous lacerations on his neck, and
police officers collected a two-inch knife covered in blood from within Dietz’s reach. Dietz did
not appear to have any injuries. Dietz only has sporadic memories of what occurred that day.
The State charged Dietz with attempted murder in the second degree and assault in the first
degree, along with a deadly weapon enhancement and vulnerable victim aggravating factor for
each count. A competency evaluation found Dietz competent to stand trial. Two psychologists
testified to her diminished capacity. They agreed that Dietz had several mental health diagnoses,
including borderline personality disorder, substance abuse disorder, and post-traumatic stress
disorder. However, the experts disagreed as to whether she had the capacity to form the requisite
intent to commit the charged crimes.
The defense proposed a diminished capacity jury instruction that read:
Evidence of mental illness or disorder may be taken into consideration in determining whether the defendant had the ability to form the intent to commit the crimes of attempted murder in the second degree, assault in the first degree, assault in the second degree, or assault in the third degree.
CP at 43 (emphasis added). Defense counsel referenced Washington Pattern Jury Instructions:
Criminal 18.20 as the source of the proposed instruction. 11 WASHINGTON PRACTICE:
WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 18.20, at 315 (5th ed. 2021) (WPIC).
WPIC 18.20 reads: “Evidence of mental illness or disorder may be taken into consideration in
determining whether the defendant had the [capacity] [ability] to form (fill in requisite mental
state).”
After discussions between the parties, the court agreed to give Dietz’s version of the
instruction with only slight modifications. The diminished capacity instruction ultimately given
2 56189-1-II
to the jury (hereinafter instruction 26) states: “Evidence of mental illness or disorder may be taken
into consideration in determining whether the defendant had the capacity to form the intent to
commit the crimes of attempted murder in the second degree and assault in the first degree or
assault in the second degree.” CP at 686 (emphasis added).
The jury found Dietz guilty as charged. Dietz appeals.
ANALYSIS
I. INVITED ERROR
Dietz argues that she received an unfair trial because the diminished capacity jury
instruction failed to include the specific intent that the State was required to prove, thereby
relieving the State of its burden to prove every element of the charged crimes. The State argues
that the doctrine of invited error bars review of Dietz’s claim that the diminished capacity
instruction was erroneous, because Dietz proposed the language that was ultimately given to the
jury. We agree with the State.
A. Legal Principles
We review de novo alleged errors of law in jury instructions. State v. Nelson, 191 Wn.2d
61, 69, 419 P.3d 410 (2018). A jury instruction is erroneous if it omits or misstates the law thereby
relieving the State of its burden to prove every element of the crime charged. Id. Under the invited
error doctrine, even where constitutional rights are involved, an appellate court is precluded from
reviewing jury instructions when the defendant has proposed the instruction. State v. Weaver, 198
Wn.2d 459, 465, 496 P.3d 1183 (2021); see also State v. Bradley, 141 Wn.2d 731, 736, 10 P.3d
358 (2000). When a defendant proposes an instruction that is identical to the instruction the trial
court gives, the invited error doctrine bars us from reversing the conviction because of an error in
that jury instruction. State v. Summers, 107 Wn. App. 373, 381, 28 P.3d 780 (2001). A party may
3 56189-1-II
not request an instruction and later complain on appeal that the requested instruction was given.
State v. Henderson, 114 Wn.2d 867, 870, 792 P.2d 514 (1990). Even if error was committed, of
whatever kind, if it was at the defendant’s invitation the defendant is precluded from claiming on
appeal that it is reversible error. State v. Studd, 137 Wn.2d 533, 546, 973 P.2d 1049 (1999). “This
holds true even if the defendant merely requests a standard [WPIC] approved by the courts.”
Summers, 107 Wn. App. at 381. Invited error is a “strict rule” to be applied whenever the
defendant’s actions, at least in part, cause the error. Id. at 381-82.
B. The Doctrine of Invited Error Bars Review of Dietz’s Claim that the Diminished Capacity Instruction was Erroneous
In this case, Dietz proposed the challenged diminished capacity instruction that was given
to the jury, which she now takes issue with on appeal. Dietz argues that the trial was unfair because
the diminished capacity jury instruction failed to include “specific intent,” which in turn relieved
the State of its burden to prove every element of the charged crimes. Br. of Appellant at 6-7.
The instruction given to the jury is based on WPIC 18.20, which reads as follows:
“[e]vidence of mental illness or disorder may be taken into consideration in determining whether
the defendant had the [capacity] [ability] to form (fill in requisite mental state).”
Dietz’s proposed instruction selected “ability” from the bracketed options available in
WPIC 18.20 and filled in the requisite mental state as “the intent to commit the crimes of attempted
murder in the first degree, assault in the first degree, assault in the second degree or assault in the
third degree.” CP at 43.
The trial court in turn gave instruction 26, wherein it opted for “capacity” instead of
“ability” (one of the two options in the WPIC instruction) and used Dietz’s proposed mental state
language, albeit without the commas, and with an added “and”: “the intent to commit the crimes
4 56189-1-II
of attempted murder in the first degree and assault in the first degree or assault in the third
degree.” CP at 686.
As is evident, the language Dietz complains of on appeal is the exact language she proposed
be added to the instruction. Dietz at least in part caused the error she now complains of on appeal,
as she proposed the language. We conclude that the invited error doctrine precludes Dietz from
now claiming this error before us. Accordingly, her argument fails.
Dietz makes no argument regarding the other minor differences in the instruction, so we
do not address them. Additionally, Dietz asserts that the error was not harmless, but because we
concluded above that she is precluded from claiming the error she invited on appeal, we do not
need to reach harmless error. We affirm.
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.
Veljacic, J.
We concur:
Lee, P.J.
Price, J.