NOTICE: SLIP OPINION (not the court’s final written decision)
The opinion that begins on the next page is a slip opinion. Slip opinions are the written opinions that are originally filed by the court. A slip opinion is not necessarily the court’s final written decision. Slip opinions can be changed by subsequent court orders. For example, a court may issue an order making substantive changes to a slip opinion or publishing for precedential purposes a previously “unpublished” opinion. Additionally, nonsubstantive edits (for style, grammar, citation, format, punctuation, etc.) are made before the opinions that have precedential value are published in the official reports of court decisions: the Washington Reports 2d and the Washington Appellate Reports. An opinion in the official reports replaces the slip opinion as the official opinion of the court. The slip opinion that begins on the next page is for a published opinion, and it has since been revised for publication in the printed official reports. The official text of the court’s opinion is found in the advance sheets and the bound volumes of the official reports. Also, an electronic version (intended to mirror the language found in the official reports) of the revised opinion can be found, free of charge, at this website: https://www.lexisnexis.com/clients/wareports. For more information about precedential (published) opinions, nonprecedential (unpublished) opinions, slip opinions, and the official reports, see https://www.courts.wa.gov/opinions and the information that is linked there. For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. FILE THIS OPINION WAS FILED FOR RECORD AT 8 A.M. ON OCTOBER 14, 2021 IN CLERK’S OFFICE SUPREME COURT, STATE OF WASHINGTON OCTOBER 14, 2021 ERIN L. LENNON SUPREME COURT CLERK
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, ) ) Respondent, ) No. 99041-7 ) v. ) ) En Banc SAMMY BURRIS WEAVER, ) ) Filed: October 14, 2021 Petitioner. ) )
OWENS, J. ― Sammy Burris Weaver was charged with one count of
residential burglary under RCW 9A.52.025. In the jury instructions, the parties
agreed to include the lesser included offense of criminal trespass in the first degree.
RCW 9A.52.070. At trial, he was found guilty of only the lesser charge of criminal
trespass in the first degree. On appeal, Mr. Weaver alleges that the jury instruction for
knowledge conflicted with the instruction for trespass, relieving the State of its burden
of proving each element of criminal trespass beyond a reasonable doubt.
This case asks the court to determine whether the jury instruction defining the
elements of first degree trespass conflicted with the jury instruction defining For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Weaver No. 99041-7
knowledge and whether Mr. Weaver invited the error by proposing the lesser included
offense instruction. Here, Mr. Weaver did not invite the error because he did not
propose the instruction to which he assigns error—“Instruction No. 14,” defining
“knowledge.” However, we reject Mr. Weaver’s claim on the merits because the jury
instructions, when read as a whole, correctly state the law and do not relieve the State
of its burden to prove each element beyond a reasonable doubt. Therefore, we affirm
Mr. Weaver’s conviction.
I. STATEMENT OF FACTS
On August 19, 2017, Mr. Weaver went to a house party. Mr. Weaver’s
motorcycle had been recently stolen, and he had heard that the thief was at the party.
When Mr. Weaver retrieved his motorcycle, the thief pursued him with a gun.
Mr. Weaver tried calling the police but realized his phone was dead. He knew people
in the neighborhood, so he ran to the home of his friends, Philip Sr. and Philip Jr., not
knowing they had moved. Mr. Weaver testified that he visited the home in the past,
and at the time he believed his friends still lived there.
When he arrived at approximately three or four in the morning, he noticed the
home was empty or in the process of being remodeled. Mr. Weaver thought his
friends might be out but would soon return. Mr. Weaver entered the residence and
plugged in his phone to charge. He eventually fell asleep and awoke to law
enforcement knocking and entering the residence. The State charged Mr. Weaver
2 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Weaver No. 99041-7
with one count of residential burglary. This was based on Mr. Weaver’s alleged theft
of services for the electricity used by charging his phone. Mr. Weaver testified that he
had visited the home in the past, and although he had not spoken with his friends in at
least nine months, he would not have entered if he knew they no longer lived there.
The parties agreed to instruct the jury on the lesser included offense of criminal
trespass in the first degree. Specifically, the to-convict instruction (Instruction No.
13) provided:
To convict the defendant of the crime of criminal trespass in the first degree, each of the following elements of the crime must be proved beyond a reasonable doubt:
(1) That on or about August 19, 2017, the defendant knowingly entered or remained in a building;
(2) That the defendant knew that the entry or remaining was unlawful; and
(3) That this act occurred in the State of Washington.
Clerk’s Papers (CP) at 47 (emphasis added). Instruction No. 8 defined “entry or
remaining unlawfully”:
A person enters or remains unlawfully in or upon premises when he is not then licensed, invited, or otherwise privileged to so enter or remain.
CP at 42. These instructions were supplemented by Instruction No. 14, defining
“knowledge”:
A person knows or acts knowingly or with knowledge with respect to a fact, circumstance, or[] result when he is aware of that fact,
3 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Weaver No. 99041-7
circumstance, or result. It is not necessary that the person know that the fact, circumstance, or result is defined by law as being unlawful or an element of a crime.
CP at 48 (emphasis added). All instructions, besides Instruction No. 13, were offered
by the prosecution.
The jury acquitted Mr. Weaver of residential burglary but convicted him of first
degree criminal trespass. Mr. Weaver argues on appeal that the definition of
knowledge instruction (Instruction No. 14) contradicted the to-convict instruction for
first degree criminal trespass (Instruction No. 13), resulting in the State being relieved
of its burden to prove Mr. Weaver subjectively knew his entry into the apartment was
unlawful beyond a reasonable doubt. State v. Weaver, No. 51734-5-II, slip op. at 6
(Wash. Ct. App. Nov. 5, 2019) (unpublished), http://www.courts.wa.gov/opinions/
pdf/D2%2051734-5-II%20Unpublished%20Opinion.pdf. In its initial opinion,
Division Two of the Court of Appeals declined to consider Mr. Weaver’s arguments
regarding the jury instructions, finding that appellate counsel did not argue the issue
was reviewable on appeal. Division Two also found that Mr. Weaver was precluded
from raising the instructional issue on appeal because trial counsel allegedly invited
the error by proposing the to-convict instruction for the lesser included offense of
criminal trespass.
Mr. Weaver filed a motion for reconsideration, requesting that Division Two
reconsider both bases for declining to review the jury instructions. Division Two
4 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Weaver No. 99041-7
granted the motion in part, deleting the portion of the opinion stating that Mr. Weaver
failed to raise the issue on appeal for the first time under RAP 2.5(a)(3) in his briefing,
but declined to address the argument on the invited error doctrine.
II. ISSUE PRESENTED
Whether the instruction defining “knowledge” conflicts with the “to-convict”
instruction for criminal trespass, relieving the State of its burden to prove that
Mr. Weaver knew his entry or remaining was unlawful?
III. ANALYSIS
A. The Invited Error Doctrine Does Not Apply
We review alleged errors in jury instructions de novo. State v. Barnes, 153
Wn.2d 378, 382, 103 P.3d 1219 (2005). However, the Court of Appeals declined to
review this issue based on the invited error doctrine. Weaver, No. 51734-5-II, slip op. at
8-9; State v. Armstrong, 69 Wn. App. 430, 434, 848 P.2d 1322 (1993) (quoting State v.
Young, 63 Wn. App. 324, 330, 818 P.2d 1375 (1991)), review denied, 122 Wn.2d 1005
(1993). Under this 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). Therefore, we must determine whether this doctrine applies.
The invited error doctrine does not apply here because Mr. Weaver did not
propose the challenged jury instruction. As the record reflects, it was the prosecution
5 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Weaver No. 99041-7
that “provided proposed jury instructions” to the court and included what the defense
proposed, “which would be the lesser included” offense of criminal trespass, Instruction
No. 13. Tr. of Proceedings (Mar. 21, 2018) at 6. If Mr. Weaver was assigning error to
Instruction No. 13, he would certainly be precluded by the invited error doctrine.
Instead, he assigns error to Instruction No. 14, the definitional instruction for
“knowledge” that was proposed by the State, thereby rendering the invited error doctrine
inapplicable. Because the invited error doctrine does not apply, we proceed to the merits
of Mr. Weaver’s claim.
B. The Jury Instructions When Read as a Whole Are Clear Jury instructions are foundational in our criminal proceedings. Jury instructions
that fail to inform the jury of an element of an offense relieve the State of its burden of
proof. Such instructions constitute manifest constitutional error that may be raised for
the first time on appeal. RAP 2.5(a)(3); State v. Stein, 144 Wn.2d 236, 240-41, 27 P.3d
184 (2001). Accordingly, Mr. Weaver’s issue is properly before this court. RAP
2.5(a)(3).
“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.” State v. O’Hara, 167 Wn.2d 91,
105, 217 P.3d 756 (2009) (citing State v. Mills, 154 Wn.2d 1, 7, 109 P.3d 415 (2005)).
“The standard for clarity in a jury instruction is higher than for a statute; while we have
6 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Weaver No. 99041-7
been able to resolve ambiguous wording of [statutes] via statutory construction, a jury
lacks such interpretive tools and thus requires a manifestly clear instruction.” State v.
LeFaber, 128 Wn.2d 896, 902, 913 P.2d 369 (1996) (citing State v. Allery, 101 Wn.2d
591, 595, 682 P.2d 312 (1984)), abrogated by O’Hara, 167 Wn.2d 91. As a result, the
instructions, when read as a whole, must make the relevant legal standard “‘“manifestly
apparent to the average juror.”’” Id. at 900 (internal quotation marks omitted) (quoting
Allery, 101 Wn.2d at 595 (quoting State v. Painter, 27 Wn. App. 708, 713, 620 P.2d
1001 (1980), review denied, 95 Wn.2d 1008 (1981))). “‘In normal usage “manifest”
means unmistakable, evident or indisputable, as distinct from obscure, hidden or
concealed.’” State v. Ackerman, 11 Wn. App. 2d 304, 312-13, 453 P.3d 749 (2019)
(quoting State v. Lynn, 67 Wn. App. 339, 345, 835 P.2d 251 (1992) (citing State v.
Taylor, 83 Wn.2d 594, 596, 521 P.2d 699 (1974))).
Here, the to-convict instruction required the jury to find that Mr. Weaver “knew
that the entry or remaining was unlawful.” CP at 47 (Instruction No. 13). This
instruction echoes the applicable criminal statute, RCW 9A.52.070: “A person is guilty
of criminal trespass in the first degree if he or she knowingly enters or remains
unlawfully in a building.” (Emphasis added.) Criminal trespass is unique in that it
requires the prosecution to prove beyond a reasonable doubt that Mr. Weaver
subjectively knew he was not allowed to enter the building. This would mean that
7 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Weaver No. 99041-7
Mr. Weaver must know that the owner of the building would not have permitted him to
enter or had made it clear that he was not to enter.
Mr. Weaver argues that the “knowledge” instruction immediately following the
to-convict instruction appears to contradict this requirement. It states that “[i]t is not
necessary that [Mr. Weaver] know that the fact, circumstance, or result is defined by law
as being unlawful or an element of a crime.” CP at 48 (Instruction No. 14) (emphasis
added). He argues that the jury could understand this instruction as saying that it is not
necessary that Mr. Weaver know he was not permitted to be in the building.
Instruction No. 14 is intended to explain that ignorance of the law is no excuse.
See 11 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS:
CRIMINAL 10.02, at 222 (4th ed. 2016) (Knowledge—Knowingly—Definition).
Therefore, it is meant to clarify that while it was necessary to demonstrate that Mr.
Weaver subjectively knew he was not allowed to be on the property, it is not necessary
that Mr. Weaver subjectively knew that his actions constituted a defined crime. If we
were to read these two instructions in isolation, there may be an argument that the
instructions are unclear. But to do so would disregard the remaining instructions that
clarify this element.
Jurors are presumed to follow the court’s instruction. State v. Emery, 174 Wn.2d
741, 766, 278 P.3d 653 (2012). We presume they “read [instructions] as a whole” to
8 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Weaver No. 99041-7
discern the “relevant legal standard.” LeFaber, 128 Wn.2d at 900. If we read these jury
instructions as a whole, any alleged ambiguity is quickly resolved.
Instruction No. 13 states “[t]hat the defendant knew that the entry or remaining
was unlawful.” CP at 47. Instruction No. 8 defines this element as “[a] person enters or
remains unlawfully in or upon premises when he is not then licensed, invited, or
otherwise privileged to so enter or remain.” CP at 42. Reading these instructions
together, the element would state that the defendant knew that the entry or remaining
was unlawful because he knew he was not licensed, invited, or otherwise privileged to
so enter or remain.
Instruction No. 14 states, “A person knows or acts knowingly or with knowledge
with respect to a fact, circumstance, or[] result when he is aware of that fact,
circumstance, or result. It is not necessary that the person know that the fact,
circumstance, or result is defined by law as being unlawful or an element of a crime.”
CP at 48.
Reading Instruction Nos. 8, 13, and 14 together, a person knows or acts
knowingly or with knowledge that the entry or remaining was unlawful when they are
aware of the fact that they were not licensed, invited, or otherwise privileged to so enter
or remain. It is not necessary that the person know that entering or remaining when not
licensed, invited, or otherwise privileged is defined by law as being unlawful or an
element of a crime. This communicates to the jury that the State was required to prove
9 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Weaver No. 99041-7
that Mr. Weaver was aware of the fact that he was not licensed, invited, or otherwise
privileged to enter or remain at the residence. Simultaneously, this communicates to the
jury that it is not necessary that Mr. Weaver know that his presence without license,
invite, or privilege, is specifically defined in the RCW as an element of criminal
trespass.
This case is fundamentally different from those cases Mr. Weaver cites to for
erroneous jury instructions. For example, in State v. Kyllo, the jury instructions
misstated applicable law: “the jury should have been informed . . . that a person is
entitled to act in self-defense when he reasonably apprehends that he is about to be
injured. One is not required to believe he is about to be grievously harmed or killed.”
166 Wn.2d 856, 863, 215 P.3d 177 (2009). As a result, the instruction “incorrectly
stated that Kyllo had to apprehend a greater degree of harm than is legally required.” Id.
Similarly, in Ackerman, the trial court erred in using the term “violent felony” in the
instructions for justifiable homicide and then stated that “‘[r]obbery is a felony.’” 11
Wn. App. 2d at 313. As a result, this conveyed to the jury that robbery is not the type of
felony that is a predicate for justifiable homicide. Id. In both of these cases, there was
either an additional or omitted term in the instructions that was misleading, resulting in
an incorrect statement of law.
Here, however, there was not an additional or omitted term that altered the burden
of proof or a misstatement of law. Instead, Mr. Weaver believes that a juror would not
10 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Weaver No. 99041-7
be able to discern the difference between “unlawful” and “defined by law as being
unlawful.” And again, if we are to read those two statements in isolation, these may be
confusing. But that would be divorcing them from the specific instructions they are in
and the context of the other instructions defining what “entry or remaining was
unlawful” means.
Further, Mr. Weaver fails to argue why jurors would completely disregard the
other instructions or specifically ignore Instruction No. 8. If there was reason to believe
that jurors would disregard Instruction No. 8 or that Instruction No. 8 itself was a
misstatement of law, then the argument would be plausible. But we presume jurors
follow the court’s instruction. Emery, 174 Wn.2d at 766. As Instruction No. 1 states,
“[The jurors] must apply the law from [the court’s] instructions to the facts.” CP at 33.
“The order of these instructions has no significance as to their relative importance. They
are all important. . . . During your deliberations, you must consider the instructions as a
whole.” CP at 35 (Instruction No. 1) (emphasis added). Therefore, these instructions
when read as a whole did not relieve the State of its burden of proof.
IV. CONCLUSION
We hold that the invited error doctrine does not apply because Mr. Weaver did
not propose the purportedly erroneous jury instruction for knowledge, Instruction
No. 14, but only the instruction for the lesser included offense. On the merits, we reject
Mr. Weaver’s claim. Reading Instruction Nos. 13 and 14 in isolation may appear
11 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Weaver No. 99041-7
confusing to some jurors, but that is not how jury instructions are read. We presume that
jurors read the entirety of the jury instructions, consider them as a whole, and believe
they are all important. Instruction No. 8 clarifies any possible misunderstanding, and
Mr. Weaver has provided no reason for why the jurors would completely disregard this
instruction, or all of the remaining instructions, while solely fixating on Instruction
No. 14. Moreover, Instruction No. 14 contains no misstatement of law nor omits an
essential element. As a result, the jury instructions are clear, and we affirm
Mr. Weaver’s conviction for criminal trespass in the first degree.
WE CONCUR:
12 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Weaver (Sammy Burris), No. 99041-7 (Gordon McCloud, J., dissenting)
No. 99041-7
GORDON McCLOUD, J. (dissenting)—Sammy Burris Weaver’s jury
received a set of contradictory and confusing jury instructions that failed to make
the relevant law “‘manifestly apparent to the average juror.’” 1 The instructions thus
relieved the State of its burden to prove every element of the crime beyond a
reasonable doubt, violating Weaver’s right to due process of law. The State has not
shown that this constitutional error was harmless beyond a reasonable doubt, so
Weaver’s conviction must be reversed. I therefore respectfully dissent. 2
I. Read together, the jury instructions were contradictory and unconstitutionally relieved the State of its burden to prove Weaver knowingly entered or remained unlawfully in a building
Weaver was charged with one count of residential burglary in violation of
RCW 9A.52.025. Clerk’s Papers (CP) at 6-7. That burglary charge was based on
the allegation that Weaver entered a house and committed theft of services by
State v. LeFaber, 128 Wn.2d 896, 900, 913 P.2d 369 (1996) (internal quotation 1
marks omitted) (quoting State v. Allery, 101 Wn.2d 591, 595, 682 P.2d 312 (1984)), abrogated on other grounds by State v. O’Hara, 167 Wn.2d 91, 98, 217 P.3d 756 (2009).
I agree with the majority’s holding that the invited error doctrine does not bar 2
Weaver’s claim. Majority at 6.
1 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Weaver (Sammy Burris), No. 99041-7 (Gordon McCloud, J., dissenting)
using a power outlet to charge his phone. Id.; Tr. of Proceedings (Mar. 21, 2018)
(TP) at 138-39. Weaver testified that he believed the house belonged to two friends
and that he had previously visited them there. TP at 101, 104, 110. Thus, Weaver’s
state of mind—whether he knew that he was unwelcome in the house—was the
key factual issue for the jury.
The parties agreed to instruct the jury on the lesser included offense of
criminal trespass. CP at 45. The jury acquitted Weaver of burglary but convicted
him of first degree criminal trespass. Id. at 51, 52.
“The due process clause of the Fourteenth Amendment to the United States
Constitution requires that jury instructions adequately convey to the jury that the
State bears the burden of proving ‘every element of the crime charged beyond a
reasonable doubt.’” State v. Imokawa, 194 Wn.2d 391, 396, 450 P.3d 159 (2019)
(quoting State v. Brown, 147 Wn.2d 330, 339, 58 P.3d 889 (2002)). The due
process clause of the Washington State Constitution provides at least the same
protection. State v. Bartholomew, 101 Wn.2d 631, 639-40, 683 P.2d 1079 (1984);
State v. Van Tuyl, 132 Wn. App. 750, 758, 133 P.3d 955 (2006) (citing U.S.
CONST. amend. VI; WASH. CONST. art. I, § 22).
As the majority correctly states, jury instructions, “when read as a whole,
must make the relevant legal standard ‘“manifestly apparent to the average
2 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Weaver (Sammy Burris), No. 99041-7 (Gordon McCloud, J., dissenting)
juror.”’” Majority at 7 (quoting State v. LeFaber, 128 Wn.2d 896, 900, 913 P.2d
369 (1996) (internal quotation marks omitted) (quoting State v. Allery, 101 Wn.2d
591, 595, 682 P.2d 312 (1984))). The majority also explains that “‘[t]he standard
for clarity in a jury instruction is higher than for a statute; while we have been able
to resolve ambiguous wording of [statutes] via statutory construction, a jury lacks
such interpretive tools and thus requires a manifestly clear instruction.’” Id. at 6-7
(second alteration in original) (quoting LeFaber, 128 Wn.2d at 902). The majority
even acknowledges that “‘“manifest” means unmistakable, evident or indisputable,
as distinct from obscure, hidden or concealed.’” Id. at 7 (internal quotation marks
omitted) (quoting State v. Ackerman, 11 Wn. App. 2d 304, 312-13, 453 P.3d 749
(2019)).
But the majority fails to apply this law. 3 Read together, the jury instructions
in this case are the opposite of “manifestly clear.” Instead, they are flatly
contradictory.
3 In fact, the majority misstates one portion of LeFaber’s holding. The majority claims LeFaber held that courts presume jurors read all their instructions and thereby determine the proper legal standard. Majority at 8. In fact, LeFaber said nothing like that. It rejected the notion that we presume jurors read all instructions as a whole, in context, with an eye to resolving ambiguities. 128 Wn.2d at 902-03. In fact, it reversed a first degree manslaughter conviction due to just such ambiguity in a self-defense instruction. Id. at 903. 3 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Weaver (Sammy Burris), No. 99041-7 (Gordon McCloud, J., dissenting)
Instruction 8 defines unlawful entry or remaining, instructing the jury that
“[a] person enters or remains unlawfully in or upon premises when he is not then
licensed, invited, or otherwise privileged to so enter or remain.” CP at 42.
Instruction 13 tells the jury that to convict Weaver of criminal trespass, the
State must prove beyond a reasonable doubt that Weaver knowingly entered or
remained in a building and that he “knew that the entry or remaining was
unlawful.” Id. at 47.
So far, so good. Together, these two instructions inform the jury that the
State must prove that Weaver knew that his entry into or remaining in the house
was without license, invitation, or privilege.
But then, instruction 14 tells the jury that “[i]t is not necessary that the
person know that [a] fact, circumstance, or result is defined by law as being
unlawful.” Id. at 48 (emphasis added). On its face, this contradicts instruction 13’s
correct statement of the law: that the State must prove Weaver knew his entry or
remaining was unlawful. 4
4 Weaver points out that Division Three of the Court of Appeals found reversible error for the same reason in State v. Gallegos, No. 36387-2-III, slip op. at 16 (Wash. Ct. App. 2020) (unpublished), http://www.courts.wa.gov/opinions/pdf/363782_unp.pdf, review granted on other grounds and remanded, 197 Wn.2d 1013 (2021). In Gallegos, the jury was given instructions identical in relevant respects to instructions 8, 13, and 14 in this case. See Clerk’s Papers at 28-30 (Wash. Ct. App. No. 36387-2-III (2018)). The court held that the “knowingly” instruction conflicted with the to-convict instruction for criminal trespass and “relieved the State from the duty to prove an element—that 4 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Weaver (Sammy Burris), No. 99041-7 (Gordon McCloud, J., dissenting)
The majority’s attempt to harmonize these contradictory instructions is not
persuasive. It relies on a supposed distinction between the terms “unlawful” and
“defined by law as being unlawful.” Majority at 10. But in both ordinary and legal
usage, these terms are synonyms. Something is not “unlawful” unless it is “defined
by law” as being so. See WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY
2502 (1993) (“unlawful” means “contrary to or prohibited by law”); BLACK’S LAW
DICTIONARY 1850 (11th ed. 2019) (“unlawful” means “[n]ot authorized by law”).
Even if a theoretical semantic distinction exists between “unlawful” and
“defined by law as being unlawful,” that distinction doesn’t matter here—because
instruction 8 defines unlawful entry or remaining. Jury instructions provide the law
that the jury must apply. 5 Thus, entry or remaining on premises without license,
invitation or privilege is “defined by law”—instruction 8—“as being unlawful.”
Gallegos subjectively knew he could not be present” on the premises. Id. While unpublished, this case still stands as persuasive authority, yet the majority fails to address it at all. 5 E.g., Lutheran Day Care v. Snohomish County, 119 Wn.2d 91, 113, 829 P.2d 746 (1992) (quoting 15 LEWIS H. ORLAND & KARL B. TEGLAND, WASHINGTON PRACTICE, Judgments § 380, at 56 (4th ed. 1986) (“‘[T]he instructions given to the jury by the trial court, if not objected to, shall be treated as the properly applicable law.’”). Indeed, here, the court correctly instructed the jury: “You must apply the law from my instructions to the facts that you decide have been proved, and in this way decide the case.” CP at 33 (instruction 1). 5 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Weaver (Sammy Burris), No. 99041-7 (Gordon McCloud, J., dissenting)
Far from “clarif[ying] any possible misunderstanding,” majority at 11, instruction
8 only emphasizes the conflict between instructions 13 and 14.
The fact that the jury instructions were taken from the Washington Pattern
Jury Instructions (WPIC) does not save them from challenge. The challenged
portion of Instruction 14 appears in brackets in the WPIC. 11 WASHINGTON
PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 10.02, at 230
(5th ed. 2021). The WPIC “Note on Use” explains that bracketed material should
be used “as applicable.” Id. Because the inclusion of the bracketed material in this
context produced a set of contradictory jury instructions, the bracketed material
was not applicable here.
Even giving these instructions the most generous reading possible, they are,
at minimum, confusing and ambiguous. That is not sufficient to satisfy the state or
United States constitutions: if jury instructions read as a whole are ambiguous, “the
reviewing court cannot conclude that the jury followed the constitutional rather
than the unconstitutional interpretation.” State v. McLoyd, 87 Wn. App. 66, 71, 939
P.2d 1255 (1997) (citing Sandstrom v. Montana, 442 U.S. 510, 526, 99 S. Ct.
2450, 61 L. Ed. 2d 39 (1979)), aff’d sub nom. State v. Studd, 137 Wn.2d 533, 973
P.2d 1049 (1999); see also LeFaber, 128 Wn.2d at 900-01.
6 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Weaver (Sammy Burris), No. 99041-7 (Gordon McCloud, J., dissenting)
The contradictory instructions are far from “manifestly clear.” Instead, they
relieved the State of its burden to prove the element of criminal trespass that
Weaver “knowingly enter[ed] or remain[ed] unlawfully in a building.” RCW
9A.52.070 (emphasis added). Read together, these instructions could have led the
jury to convict Weaver even if it believed that he did not know his entry or
remaining was unlawful. This violated Weaver’s due process rights.
II. Reversal is required because the State has not shown that the constitutional error was harmless beyond a reasonable doubt
Constitutional error is harmless if it “‘appears beyond a reasonable doubt
that the error complained of did not contribute to the verdict obtained.’” Brown,
147 Wn.2d at 341 (internal quotation marks omitted) (quoting Neder v.
United States, 527 U.S. 1, 15, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999)). If an
element is omitted from or misstated in a jury instruction, “the error is harmless if
that element is supported by uncontroverted evidence.” Id. (citing Neder, 527 U.S.
at 18).
The evidence about Weaver’s knowledge was far from uncontroverted. In
fact, whether Weaver subjectively knew that he did not have permission to be in
the house was the key issue in controversy in this case. Weaver’s defense at trial
was that he believed his friends lived in the house and that he was permitted to be
there. TP at 101, 104, 110. He testified that “as far as I know, I knew the people 7 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Weaver (Sammy Burris), No. 99041-7 (Gordon McCloud, J., dissenting)
that lived there. I assumed they still lived there. Otherwise . . . I would not have
entered it.” Id. at 104. Because we cannot say beyond a reasonable doubt that the
challenged portion of instruction 14 did not contribute to the jury’s guilty verdict,
the conviction should be reversed. Brown, 147 Wn.2d at 343.
I respectfully dissent.