State Of Washington, V. Rolf Mifflin

• Court: Court of Appeals of Washington
• Decided: March 27, 2023
• Docket: 83053-8
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, No. 83053-8-I Respondent, DIVISION ONE v. UNPUBLISHED OPINION ROLF G. MIFFLIN,

Appellant.

COBURN, J. — Rolf Mifflin appeals his convictions for felony stalking and

misdemeanor stalking. He contends for the first time on appeal that the to-

convict instruction did not contain all of the essential elements of stalking

because RCW 9A.46.110(1) requires fear of physical injury only. Mifflin waived

this argument. He further maintains that the trial court erred in response to a jury

question during deliberation by failing to further instruct the jury that the State

had to prove that the victim was placed in reasonable fear that Mifflin intended to

physically injure her. The plain text of the stalking statute does not restrict that

the feared injury be of a physical nature only. We affirm.

FACTS

Mifflin was charged with one count of felony stalking, one count of

misdemeanor stalking, and two counts of violation of protective order involving

Citations and pincites are based on the Westlaw online version of the cited material No. 83053-8-I/2

his conduct toward Lucretia Hoverter.

After the parties presented their cases at trial, the court discussed

proposed jury instructions with the parties. During discussion of stalking to-

convict instructions, Mifflin successfully argued that irrelevant language related to

third parties be removed and that the to-convict instruction should read that

Hoverter “was placed in reasonable fear that the Defendant intended to injure

her.” The court so instructed. Mifflin never raised any concern as to a missing

element in these instructions.

During deliberations, the jury asked the court, “Is there a legal definition of

‘injure’ with regard to the second criteria for misdemeanor and felony stalking

charges? (eg. does injure mean physical injury or could emotional/psychological

damage also qualify?).” The court consulted with the parties on what answer, if

any, should be provided. The prosecutor stated that under the rules of statutory

construction, the injury did not need to be physical because the stalking statute

did not include the definition of injury as physical injury. Defense counsel argued

that the term applied to physical injury only and the court should clarify that for

the jury. The court agreed with the State and instructed the jury to “rely upon the

court’s instructions provided to the jury.” The jury found Mifflin guilty on all

counts.

Mifflin appeals.

DISCUSSION

Mifflin does not raise a sufficiency of the evidence argument so we need

not discuss the underlying facts supporting the convictions. Mifflin initially

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identified only one assignment of error: “The trial court failed to instruct the jury

on all of the essential elements of the crime of stalking.” He added a second

assignment of error in supplemental briefing: “The court erred by failing to

answer the jury’s inquiry about the meaning of the word ‘injure’ in the ‘to-convict’

instructions for stalking.”

A to-convict instruction must contain all of the elements of the crime, serving

as a “‘yardstick by which the jury measures the evidence to determine guilt.’” State

v. Tyler, 191 Wn.2d 205, 216, 422 P.3d 436 (2018) (quoting State v. France, 180

Wn.2d 809, 815, 329 P.3d 864 (2014)).

The State argues that Mifflin waived this argument. We agree. Generally,

we will not consider issues raised for the first time on appeal. RAP 2.5(a). A

party may claim an error for the first time on appeal if it concerns “(1) lack of trial

court jurisdiction, (2) failure to establish facts upon which relief can be granted,

[or] (3) manifest error affecting a constitutional right.” RAP 2.5(a).

Although the omission of an element from a to-convict instruction is of

“sufficient constitutional magnitude to warrant review when raised for the first

time on appeal,” if the instructions properly inform the jury of the essential

elements of the crime, an error in defining terms that describe the elements of

the crime is not an error of constitutional magnitude. State v. Mills, 154 Wn.2d 1,

6, 109 P.3d 415 (2005); see State v. Saunders, 177 Wn. App. 259, 269, 311 P.3d

601 (2013) (explaining that definitional terms that clarify the meaning of essential

elements are not essential elements that must be included in a to-convict

instruction).

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Washington’s stalking statute, former RCW 9A.46.110(1) (2013), provides

the following:

(1) A person commits the crime of stalking if, without lawful authority and under circumstances not amounting to a felony attempt of another crime: (a) He or she intentionally and repeatedly harasses or repeatedly follows another person; and (b) The person being harassed or followed is placed in fear that the stalker intends to injure the person, another person, or property of the person or of another person. The feeling of fear must be one that a reasonable person in the same situation would experience under all the circumstances; and (c) The stalker either: (i) Intends to frighten, intimidate, or harass the person; or (ii) Knows or reasonably should know that the person is afraid, intimidated, or harassed even if the stalker did not intend to place the person in fear or intimidate or harass the person.

The statute also defines several terms. Former RCW 9A.46.110(6) (2013).

“Injure” is not one of the terms defined in the statute. Mifflin does not dispute that

the court’s to-convict jury instructions accurately reflected the language of the

statute. Former RCW 9A.46.110(1)(b) (2013) required the person being

harassed or followed be place in fear that the stalker “intend[ed] to injure the

person.” Both the to-convict stalking instructions for the misdemeanor and felony

counts required the State to prove that Hoverter was placed in reasonable fear

that the defendant intended to “injure” her. Mifflin cites to no case that has

interpreted the stalking statute to require fear of physical injury only. Mifflin has

not established a manifest error affecting a constitutional right. Accordingly, he

has waived this argument.

Mifflin’s second assignment of error is based on the same presumption in

his first assignment of error—that the fear of injury must be physical injury.

4 No. 83053-8-I/5

Mifflin argues that the trial court should have responded to the jury’s question on

the legal meaning of “injure” by further instructing the jury that the State was

required to prove that Hoverter was place in reasonable fear that Mifflin intended

to physically injure her.

It is within the trial court’s discretion to answer jury questions and give

further instructions. State v. Becklin, 163 Wn.2d 519, 529, 182 P.3d 944 (2008).

Any instructions given must accurately state the law. State v. Teal, 152 Wn.2d

333, 339, 96 P.3d 974 (2004). We review whether jury instructions accurately

reflect the law de novo. Becklin, 163 Wn.2d at 525.

The trial court did not abuse its discretion in answering the jury question

by directing the jury to refer to the court’s instructions provided. As already

discussed, the jury instructions accurately reflected the plain language of the

stalking statute which does not restrict the term “injure” to only physical injuries.

We therefore affirm.

WE CONCUR: