No. 25751-7-III.The Court of Appeals of Washington, Division Three.
December 27, 2007.
Appeal from a judgment of the Superior Court for Whitman County, No. 05-1-00282-9, David Frazier, J., entered December 1, 2006.
Affirmed by unpublished opinion per Kulik, J., concurred in by Schultheis, A.C.J., and Brown, J.
KULIK, J.
A jury convicted Kyle Seipp of second degree assault. Prior to closing arguments, the trial court read instructions to the jury. The trial court misstated jury instruction 12 to say “[i]f you find the State has not proved the absence of this defense beyond a reasonable doubt it will be your duty to return a verdict of guilty,”[1] instead of “not guilty.” On appeal, Mr. Seipp contends the trial court erred by issuing a jury instruction that improperly relieved the State of its burden to prove the absence of self-defense. We hold that while instruction 12 — as read to the jury — was defective, the written instruction submitted to the jury and the instructions as a whole clearly informed the jury of the proper burden on the State. Therefore, we affirm. Report of Proceedings (RP) at 218.
FACTS
Mr. Seipp was charged by information with second degree assault. The information specifically alleged that on December 4, 2005, Mr. Seipp intentionally assaulted Thomas Schoenfelder, Jr., and thereby recklessly inflicted substantial bodily harm on Mr. Schoenfelder by hitting him on the head with a deadly weapon — a bottle.
During trial, the jury heard testimony from nine witnesses: Deanna Baltzell, the host of the party where the assault occurred; Tom Schoenfelder, the assault victim; Officer Scott Kirk of the Pullman Police Department; Dr. Peter Mikkelsen, the treating physician; and five witnesses who attended the party.
Events on December 4, 2005. In the early morning hours of December 4, 2005, officers from the Pullman Police Department were called to the scene of a fight at an apartment complex. Ms. Baltzell and her roommate, Katie Curtis, held a party at their apartment in Pullman the night of December 3, which carried over into the morning of December 4. Approximately 20 to 30 people attended. Guests at the party included Kyle Seipp, a coworker of the roommates, and Ms. Curtis’s boyfriend, Tom Schoenfelder. Alcohol was served at the party, and many guests arrived after having consumed alcohol earlier in the evening.
Mr. Seipp appeared intoxicated when he arrived at the party, and he was seen drinking throughout the evening. During the party, Mr. Seipp called Ms. Baltzell a “broad,” and her boyfriend, Jaron Herst, became angry. Report of Proceedings (RP) at 62. An argument ensued between the two men. The argument continued for an hour. At some point, Mr. Seipp and Mr. Herst pushed and slapped each other.
After the fight, Mr. Herst fell asleep, and Ms. Baltzell and Ms. Curtis spoke with Mr. Seipp in the bathroom. Ms. Baltzell testified that while she told Mr. Seipp that he would have to leave if he did not stop his behavior, her roommate Ms. Curtis told him he had to leave. Mr. Seipp did not leave, but instead went into Ms. Curtis’s bedroom to apologize. When Ms. Curtis again told Mr. Seipp that he needed to leave, he began pushing her. As Mr. Seipp flailed his arms around, he hit Ms. Baltzell. Ms. Baltzell testified: “[H]e hit me. . . . I don’t think it was intentional[.]” RP at 77. She also stated that Mr. Seipp used a closed fist.
Testimony shows that Mr. Seipp’s behavior was disruptive and became increasingly aggressive throughout the evening. The situation inside the apartment was described as tense. However, the testimony indicated that no one other than Mr. Herst was heard threatening Mr. Seipp or was seen hitting him during the party. Ultimately, Ms. Curtis’s boyfriend, Mr. Schoenfelder, made the decision to remove Mr. Seipp from the party. Mr. Schoenfelder testified that he “felt that if Kyle remained in the apartment someone was going to get hurt.” RP at 132.
At that point, Mr. Schoenfelder advised Mr. Seipp that he needed to leave the party, and escorted Mr. Seipp out of the apartment by pushing him from behind. The testimony varied as to how much force Mr. Schoenfelder used when pushing Mr. Seipp out of the door; but the testimony consistently shows that Mr. Schoenfelder did not hit or threaten Mr. Seipp. Mr. Seipp, however, did not want to leave the party and attempted to get back inside the apartment.
Within one to one and one-half seconds of being pushed onto the front patio, and within a few steps of the doorway, Mr. Seipp hit Mr. Schoenfelder on the head with a beer bottle. Mr. Schoenfelder sustained a head injury, which was later diagnosed as a subarachnoid hemorrhage, and he was admitted to Pullman Regional Hospital.
Another guest at the party, Cameron Bendewald, testified that after Mr. Seipp hit Mr. Schoenfelder, he physically took Mr. Seipp to the ground and held him there to restrain him. Mr. Schoenfelder never hit or kicked Mr. Seipp while he was being held. The only injury Mr. Seipp sustained was a cut on his hand.
When Officer Kirk arrived, he observed a group of 5 to 10 males outside the apartment, who appeared upset. Officer Kirk testified that he contacted Mr. Seipp inside the apartment while Mr. Seipp was treating his hand. Officer Kirk questioned Mr. Seipp about the events of the evening. Mr. Seipp admitted to the officer that he had been asked to leave the party, but that he did not want to do so. The officer’s testimony shows that Mr. Seipp also admitted that he hit Mr. Schoenfelder over the head with a bottle when Mr. Schoenfelder directed him to leave the apartment.
Mr. Seipp told Officer Kirk that he thought he was outnumbered at the party by Mr. Schoenfelder’s friends, and he felt they ganged up on him inside the apartment. Mr. Seipp also told the officer that he was forced to defend himself and he claimed that he hit Mr. Schoenfelder in self-defense. Finally, Officer Kirk testified that when he asked Mr. Seipp who threw the first punch, Mr. Seipp stated that he did. Mr. Seipp was arrested and charged with assault in the second degree.
Self-Defense Instruction. The court provided 23 jury instructions. The trial court read the instructions to the jury, prior to closing arguments. The jury was also provided with written copies of the correct instructions for their deliberations. Instruction 12 concerned the defense of lawful force. As written, instruction 12 stated, in part:
The State has the burden of proving beyond a reasonable doubt that the force [used] by the defendant was not lawful. If you find that the State has not proved the absence of this defense beyond a reasonable doubt, it will be your duty to return a verdict of not guilty.
Clerk’s Papers (CP) at 25 (emphasis added). This instruction on the burden of proof is based on 11 Washington Practice: Washington Pattern Jury Instructions: Criminal 17.02 (2d ed. 1994), and is identical to Mr. Seipp’s proposed instruction.
When instruction 12 was read to the jury, however, the trial court misstated the last sentence of that instruction to say:
If you find the State has not proved the absence of this defense beyond a reasonable doubt it will be your duty to return a verdict of guilty.
RP at 218 (emphasis added).
During closing argument, defense counsel addressed the court’s misstatement as follows:
Again, finally it says in the self-defense instruction the State has the burden of proving beyond a reasonable doubt that the force by the defendant was not lawful. The State has to prove it was not lawful. So if you have any reason to believe it was lawful, could have been lawful, may have been lawful, you have to acquit. That is self-defense. The next paragraph, last paragraph or last sentence next of the instruction if you find the State has not proved the absence of this defense beyond a reasonable doubt they must prove its lack beyond a reasonable doubt it will be your duty to return a verdict of not guilty. I’m not sure the Judge got that not in just to be sure it’s not guilty and again you’ll have a written copy. But if you find the State has not proved the absence of this defense beyond a reasonable doubt you have to return a not guilty verdict. They have to prove there cannot be any doubt in your mind that Mr. Seipp is entitled to self-defense in this situation. The State has to eliminate all doubt from your mind that he was entitled to defend himself.
RP at 254-55 (emphasis added).
In response to Mr. Seipp’s comments on instruction 12, the prosecutor reiterated that the State had the burden of proving the absence of self-defense beyond a reasonable doubt. Finally, the prosecutor advised the jury to “[r]ead the jury instructions carefully.” RP at 270.
Appeal. On October 17, 2006, a jury found Mr. Seipp guilty of assault in the second degree. This appeal followed.
ANALYSIS
Mr. Seipp contends the trial court relieved the State of its burden to prove lack of self-defense beyond a reasonable doubt by issuing an oral instruction to the jury on self-defense, which substituted the word “guilty” for “not guilty.”
Stan dard of Review. On appeal, this court reviews instructional errors de novo. State v. Brett, 126 Wn.2d 136, 171, 892 P.2d 29 (1995). A jury instruction must state the applicable law correctly. State v. Mark, 94 Wn.2d 520, 526, 618 P.2d 73 (1980). “Jury instructions are sufficient if they allow the parties to argue their theories of the case, do not mislead the jury and, when taken as a whole, properly inform the jury of the law to be applied.” Hue v. Farmboy Spray Co., 127 Wn.2d 67, 92, 896 P.2d 682 (1995). Importantly, the court evaluates each instruction in the context of the instructions as a whole. State v. Benn, 120 Wn.2d 631, 654-55, 845 P.2d 289 (1993).
Self-defense instructions are subject to heightened appellate scrutiny. State v. Woods, 138 Wn. App 191, 196, 156 P.3d 309 (2007). Jury instructions on self-defense “must more than adequately convey the law.” State v. LeFaber, 128 Wn.2d 896, 900, 913 P.2d 369 (1996). A flawed self-defense instruction may affect a criminal defendant’s constitutional right to a fair trial. State v. Fields, 87 Wn. App. 57, 64, 940 P.2d 665 (1997), aff’d sub nom. State v. Studd, 137 Wn.2d 533, 973 P.2d 1049 (1999)). Consequently, a jury instruction that misstates the law of self-defense amounts to an error of constitutional magnitude and is presumed prejudicial. LeFaber, 128 Wn.2d at 900.
State’s Burden. The due process clause of the Fourteenth Amendment requires the State to prove every element of the crime charged beyond a reasonable doubt. U.S. Const. amend. XIV; Const. art. I, § 3; In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970). Proof of self-defense negates the intent element of second degree assault. State v. Acosta, 101 Wn.2d 612, 617, 683 P.2d 1069 (1984); see RCW 9A.36.021. Accordingly, in a prosecution for assault where the issue of self-defense is properly raised, the absence of self-defense becomes another element of the crime, which the State must prove beyond a reasonable doubt. Acosta, 101 Wn.2d at 615-16.
When the State has the burden of disproving self-defense beyond a reasonable doubt, the jury instructions, taken as a whole, must inform the jury of this burden in an unambiguous way State v. Redwine, 72 Wn. App. 625, 630-31, 865 P.2d 552
(1994).
An erroneous jury instruction that misstates the law is subject to harmless error analysis. State v. L.B., 132 Wn. App. 948, 954, 135 P.3d 508 (2006); Woods, 138 Wn. App. at 202. Because an error which infringes on a defendant’s constitutional rights is presumed prejudicial, in order for this court to declare that a constitutional error is harmless, it must appear beyond a reasonable doubt that the error did not contribute to the ultimate verdict. State v. Berube, 150 Wn.2d 498, 505, 79 P.3d 1144 (2003) (citing State v. Brown, 147 Wn.2d 330, 341, 58 P.3d 889 (2002)).
In determining the effect of the error in a particular case and whether such an error is harmless, the reviewing court may consider such factors as
the importance of the witness’ testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution’s case.
Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S. Ct. 1431, 89 L. Ed. 2d 674 (1986).
In this case, the State was not relieved of its burden to prove the absence of self-defense at trial. While instruction 12, as read out loud to the jury by the trial court, was defective, the instructions as a whole clearly informed the jury as to the State’s burden.
Instruction 12 on self-defense, in both its written and oral form, explicitly stated: “The State has the burden of proving beyond a reasonable doubt that the force by the defendant was not lawful.” CP at 25. In addition, jurors were provided with written copies of the correct instructions. Instructions 13 and 14 provided further instruction on self-defense. Evaluating the misstatement in instruction 12 in the context of the instructions as a whole, the jury was correctly instructed on the State’s burden.
Moreover, counsel for both the defense and the prosecution were able to correct the court’s error in closing argument. Defense counsel pointed out the court’s error to the jury and referred the jurors to the written copies of the instructions. Accordingly, the jury was provided with the correct instructions and the State was not relieved of its proper burden of proving the absence of self-defense.
Finally, this court can conclude beyond a reasonable doubt that the jury verdict would have been the same absent the error. It was undisputed that Mr. Seipp hit Mr. Schoenfelder on the head with a glass bottle after being escorted out of a party. Officer Kirk testified: “I asked [Mr. Seipp] if he had thrown the first punch. He had stated he had.” RP at 145-46. The testimony also shows that no one, other than Mr. Herst, hit or threatened Mr. Seipp during the party. Because the record supports a finding that the jury verdict would have been the same absent the error in the instruction as read to the jury, the error was harmless beyond a reasonable doubt.
Accordingly, we affirm.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
BROWN, J. and SCHULTHEIS, A.C.J., concur.