State v. Chacon

431 P.3d 477
Washington Supreme Court·Decided December 27, 2018·No. No. 95194-2·Published·Cited by 32 cases

Opinion

MADSEN, J.

*478¶ 1 John Chacon seeks reversal of an unpublished Court of Appeals opinion affirming his conviction for second degree assault and criminal trespass. At trial, the judge instructed the jury on reasonable doubt, using 11 Washington Practice: Washington Pattern Jury Instructions: Criminal 4.01, at 93 (4th ed. 2016) (WPIC), but omitted the last sentence of that instruction, which states, "The defendant has no burden of proving that a reasonable doubt exists." See Clerk's Papers (CP) at 30-31, 66.1 Chacon failed to object to the instruction but argues that the omission is a manifest constitutional error, which may be reviewed for the first time on appeal pursuant to RAP 2.5(a)(3). Further, relying on Sullivan v . Louisiana , 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993), Chacon claims the error is not subject to a harmless error analysis.

¶ 2 We hold the instruction given here was not manifest constitutional error and affirm Chacon's conviction.

FACTS

¶ 3 Chacon was charged with second degree assault and first degree criminal trespass, following an altercation and subsequent arrest at the Olympia Senior Center. At trial, the State and defense both provided the court with proposed jury instructions, and the State specifically provided the court with WPIC 4.01, the burden of proof instruction. However, the instruction to the jury did not include the last sentence of the instruction, as mentioned above.

ANALYSIS

RAP 2.5(a)(3)

¶ 4 Chacon did not object to the court's reasonable doubt instruction. Ordinarily, we do not consider unpreserved errors raised for the first time on review. State v . Scott , 110 Wash.2d 682, 685, 757 P.2d 492 (1988). However, manifest errors affecting a constitutional right may be raised for the first time on appeal. RAP 2.5(a)(3) ; In re Dependency of MSR, 174 Wash.2d 1, 11, 271 P.3d 234 (2012). Chacon argues that he is entitled to review under RAP 2.5(a)(3) because the omission of language in the reasonable doubt instruction was manifest constitutional error.

¶ 5 To determine whether manifest constitutional error was committed there must be " 'a plausible showing by the [appellant] that the asserted error had practical and identifiable consequences in the trial of the case.' " State v . O'Hara, 167 Wash.2d 91, 99, 217 P.3d 756 (2009) (alteration in original) (internal quotation marks omitted) (quoting State v . Kirkman, 159 Wash.2d 918, 935, 155 P.3d 125 (2007) ).

¶ 6 Some jury instruction errors have been held to constitute manifest constitutional error in this state such as shifting the burden of proof to the defendant, State v. McCullum, 98 Wash.2d 484, 487-88, 656 P.2d 1064 (1983) (plurality opinion); omitting an element of the crime charged, State v . Johnson, 100 Wash.2d 607, 623, 674 P.2d 145 (1983), overruled on other grounds by State v . Bergeron, 105 Wash.2d 1, 711 P.2d 1000 (1985) ; and failing to define the "beyond a reasonable doubt" standard, State v . McHenry, 88 Wash.2d 211, 214, 558 P.2d 188 (1977), among others. See O'Hara, 167 Wash.2d at 100-01, 217 P.3d 756. In contrast, this court has held that failing to instruct on a lesser included offense, State v . Kwan Fai Mak, 105 Wash.2d 692, 745-49, 718 P.2d 407 (1986), and failing to define individual terms, *479Scott, 110 Wash.2d at 690-91, 757 P.2d 492, do not constitute manifest constitutional errors. This court has not yet considered whether failing to inform the jury that the defendant bears no burden to prove that a reasonable doubt exists constitutes manifest constitutional error.

Constitutional Requirements

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State v. Chacon, 431 P.3d 477 (Wash. 2018).

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