* State Of Washington, Resp. vs. Christopher Hood, App.

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
Respondent,
v.
No. 73401-6-1
DIVISION ONE
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CHRISTOPHER ROBIN HOOD,
Appellant.
PUBLISHED OPINION 	^ 	~£
FILED: 	September 26, 2016 	*" 	^
ody sentencing statute, RCW
to which crimes have an 18-month
Becker, J. — The community cust
9.94A.701, is not ambiguous with respect
term of community custody. 	Finding no error in sentencing and holding that it
was not manifest constitutional error to use the pattern instruction defining
reasonable doubt, we affirm.
FACTS
According to testimony at trial, appellant Christopher Hood was married to
LD from 2006 to 2014. As the divorce was being finalized, Hood showed up
uninvited at LD's apartment and workplace on several occasions. 	LD obtained a
protection order. On November 21, 2014, LD was preparing to leave for work
around 3:45 a.m. 	When she opened the door, Hood burst in and shoved her
against the wall. 	He pulled a gun from his waistband, hit her with the butt of the
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 73401-6-1
gun two or three times, and held the gun to her head. 	Hood left when a dog
started barking upstairs. 	LD called the police.
A jury convicted Hood of three crimes of domestic violence as defined
under RCW 10.99.020—burglary in the first degree, felony violation of a court
order, and stalking. 	The trial court imposed an exceptional sentence based on
the jury's finding of an aggravating factor. 	Hood appeals.
REASONABLE DOUBT INSTRUCTION
The court gave the standard reasonable doubt instruction, WPIC 4.01. 	11
Washington Practice: Washington Pattern Jury Instructions: Criminal 4.01,
at 27 (3d ed. Supp. 2014-15) (WPIC). The instruction reads in relevant part, "A
reasonable doubt is one for which a reason exists and may arise from the
evidence or lack of evidence." 	Hood did not object. 	For the first time on appeal,
he argues that it implicitly—and unconstitutionally—requires jurors to be able to
articulate reasonable doubt. 	He claims the instruction undermines the
presumption of innocence and shifts the burden of proof in the same way as the
fill-in-the-blank arguments that our Supreme Court disapproved in State v.
Emery, 174 Wn.2d 741, 760, 278 P.3d 653 (2012).
The State first contends that Hood invited any error that may exist in the
pattern instruction. The basic premise of the invited error doctrine is that a party
who sets up an error at trial cannot claim that very action as error on appeal and
receive a new trial. 	State v. Momah, 167 Wn.2d 140, 153, 217 P.3d 321 (2009),
cert, denied, 562 U.S. 837 (2010). 	Thus, a party may not request a particular
instruction and later complain on appeal that the requested instruction was given.
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 73401-6-1
State v. Studd, 137 Wn.2d 533, 546, 973 P.2d 1049 (1999). 	Invited error
prevents review of instructional errors even if they are of constitutional
magnitude. 	City of Seattle v. Patu, 147 Wn.2d 717, 720, 58 P.3d 273 (2002).
Hood responds that the State's claim of invited error is not supported by
the record and that if anything his counsel did is interpreted as invited error, then
he received ineffective assistance of counsel.
When the court inquired at the beginning of the trial, the prosecution had
submitted instructions but the defense had not.
THE COURT: . . . Let's see. 	It doesn't look like I've gotten
instructions yet. 	So I'll be needing those—did you submit them?
[PROSECUTOR]: 	Yes, I did.
THE COURT: ... Do we have any from the defense?
[DEFENSE COUNSEL]: No, you don't.
THE COURT: Okay. 	Whatever you're going to provide,
please do it by tomorrow.
A week later, as the defense was about to rest, the court tentatively
promised to provide counsel with a set of proposed instructions by the next
morning. 	The court stated that defense counsel had "stipulated" to the
instructions proposed by the State.
THE COURT: 	Okay. 	So it sounds like we'll do—we might
do instructions in the morning. 	We'll probably do closings in the
afternoon first thing.
[PROSECUTOR]: 	Sounds good.
THE COURT: All right. 	One other thing.
/ wanted to put on the record that counsel has stipulated to
the jury instructions submitted by the prosecution. 	And I will review
those and get a proposed packet back to you. 	I'll try to do that over
the break so we can get those taken care of maybe tomorrow
morning. All right?
You ready?
(Emphasis added.)
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 73401-6-1
The defense rested mid-morning of the next day. 	The court stated that the
defense had "joined" in the State's instructions.
THE COURT: 	Okay. 	Well, I tell you what we'll do. 	I almost
have the instructions ready. 	I just want to—you did leave out the
Assault 1 to convict instruction, at least in the ones that I got, so
Teresa is preparing that one. 	Maybe you filed it, I don't know.
But in any event—and then I think, as I understand it, the
defense has joined in the submission of the prosecution, so those
should be ready to go. 	Why don't I instruct the jury after the
morning recess, and then we'll recess until—can you be back here
at 1:00?
(Emphasis added.)
After the recess, the court and counsel discussed the instructions. 	Both
counsel raised issues with some of the instructions the court was proposing to
give. 	The court made certain modifications. 	The jury was then called in, and the
court read the instructions.
The State bases its claim of invited error on the trial court's statements,
quoted above, that Hood "stipulated to" and "joined in" the jury instructions
submitted by the State. 	The premise of the State's argument is that a criminal
defendant has an obligation under CrR 6.15(a)1 to propose jury instructions. The
1 (a) Proposed Instructions. 	Proposed jury instructions
shall be served and filed when a case is called for trial by serving
one copy upon counsel for each party, by filing one copy with the
clerk, and by delivering the original and one additional copy for
each party to the trial judge. Additional instructions, which could
not be reasonably anticipated, shall be served and filed at any time
before the court has instructed the jury.
Not less than 10 days before the date of trial, the court may
order counsel to serve and file proposed instructions not less than 3
days before the trial date.
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 73401-6-1
State contends that defense counsel efficiently discharged that obligation by
choosing to join in the State's proposed instructions rather than generating a set
of proposed instructions for the defense, and as a result, Hood should not now
be heard to argue that one of the State's proposed instructions is erroneous.
The State's premise is incorrect. 	CrR 6.15(a) does not impose an
obligation to propose jury instructions. 	If a party wishes to propose instructions,
CrR 6.15(a) sets forth the timing and procedure to be followed. 	See State v.
Sublett, 176 Wn.2d 58, 75-76, 292 P.3d 715 (2012). 	Since it is the State that
wishes to secure the conviction, the State ordinarily assumes the burden of
proposing an appropriate and comprehensive set of instructions. 	Just as a
defendant has no duty to bring himself to trial, Barker v. Winqo, 407 U.S. 514,
527, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972), a defendant has no duty to propose
the instructions that will enable the State to convict him.
It is typical for discussions about jury instructions to occur more than once
during the course of a trial. The initial discussions are often somewhat informal
and do not need to be held in open court. 	Sublett, 176 Wn.2d at 75. 	Often, the
trial judge will review various drafts, solicit comments, and strive to isolate,
understand, and reduce the areas of disagreement between the parties before
producing the final set of instructions that the court proposes to give. 	Before the
Each proposed instruction shall be on a separate sheet of
paper. 	The original shall not be numbered nor include citations of
authority.
Any superior court may adopt special rules permitting certain
instructions to be requested by number from any published book of
instructions.
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 73401-6-1
final instructions are given to the jury, counsel must be given a formal opportunity
to object in the absence of the jury. 	CrR 6.15(c). 	Any objections to the
instructions, as well as the grounds for the objections, must be put on the record
to preserve review. 	Sublett, 176 Wn.2d at 75-76. All of that occurred in this
case. 	Hood did not propose instructions, but he did raise specific objections to
the court's set of proposed instructions, and his objections led to changes being
made.
It is not clear why the trial court made a point of saying that Hood had
"joined in" or "stipulated to" the State's proposed instructions. There is no record
of Hood formally stipulating to the correctness of the instructions proposed by the
State. 	The court's remarks may have simply been intended to memorialize the
fact that Hood had not proposed a competing set of instructions. 	In any event,
the court's remarks do not provide a basis for holding that Hood specifically
invited the court to give the reasonable doubt instruction to which he now assigns
error.
In determining whether the invited error doctrine applies, our courts
consider "whether the defendant affirmatively assented to the error, materially
contributed to it, or benefited from it." In re Pers. Restraint of Coqqin, 182 Wn.2d
115, 119, 340 P.3d 810 (2014). 	"The doctrine appears to require affirmative
actions by the defendant." 	In re Pers. Restraint of Thompson, 141 Wn.2d712,
724, 10 P.3d 380 (2000). 	It has been applied when a defendant took knowing
and voluntary actions to set up the error. 	Thompson, 141 Wn.2d at 723-24. 	For
example, in the consolidated appeals examined in Studd, the defendants were
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 73401-6-1
claiming self-defense. 	Those defendants who proposed a particular self-defense
instruction that was accepted by the court and given to the jury were held to have
invited the error they claimed on appeal. 	Studd, 137 Wn.2d at 547. 	Nothing of
the sort occurred in this case. 	Hood did not affirmatively request any particular
instruction. 	We conclude appellate review of the reasonable doubt instruction is
not barred by the doctrine of invited error.
This is not to say that defense counsel can safely ignore the process of
developing the instructions in a criminal case. 	An attorney has an obligation to
object to instructions which appear to be incorrect or misleading and must also
propose instructions necessary to support argument of the client's theory of the
case. 	Failure to preserve error by objecting in the trial court generally operates
as a waiver, RAP 2.5(a), and this case is no exception. 	Hood contends that
despite his failure to object, he may raise the alleged error under RAP 2.5(a)(3)
as a manifest error affecting a constitutional right. 	But the error he alleges was
not manifest, i.e., it was not an obvious error that the trial court would be
expected to correct even without an objection. 	State v. O'Hara, 167 Wn.2d 91,
99-100, 217 P.3d 756 (2009). 	Our Supreme Court has instructed trial courts to
use only the pattern instruction. 	State v. Bennett, 161 Wn.2d 303, 318, 165 P.3d
1241 (2007). 	The trial court was not obligated to anticipate that the use of WPIC
4.01 would be challenged on appeal as undermining the presumption of
innocence.
Although the doctrine of invited error does not bar review, we decline to
review Hood's challenge to the reasonable doubt instruction because he did not
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No. 73401-6-1
object to it at trial and giving the instruction was not manifest constitutional error.
COMMENT ON THE EVIDENCE
On the charges of burglary and felony violation of a court order, the State
alleged the aggravating circumstance that "the offense was part of an ongoing
pattern of psychological, physical, or sexual abuse of a victim or multiple victims
manifested by multiple incidents over a prolonged period of time." 	RCW
9.94A.535(3)(h)(i). 	In the second phase of a bifurcated trial, the jury found the
allegation proven.
Using a pattern instruction, the court instructed the jury that "the term
'prolonged period of time' means more than a few weeks." WPIC 300.17. The
State concedes that this instruction constituted an improper comment on the
evidence. 	State v. Brush, 183 Wn.2d 550, 559, 353 P.3d 213 (2015). 	But the
error was harmless. 	The evidence showed that Hood committed domestic abuse
in several incidents occurring over a period from 1999 to 2014. Whether that
was a prolonged period of time was not a contested issue. 	Ifthe jurors believed
the evidence of the prior domestic abuse, they could not have failed to find that
the domestic abuse occurred over a prolonged period of time. 	Thus, the
erroneous instruction was not prejudicial. 	See State v. Lew, 156 Wn.2d 709,
721-22, 726, 132 P.3d 1076 (2006). There is no reversible error.
OFFENDER SCORE
The court sentenced Hood to an exceptional sentence totaling 156
months. 	The exceptional sentence was due to the aggravating circumstance of
an ongoing pattern of abuse.
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No. 73401-6-1
Hood contends that the trial court should have granted his request to
classify the two convictions as the same criminal conduct. 	To do so would have
lowered his offender score and potentially lowered the length of the exceptional
sentence.
The defendant bears the burden at trial to show that current offenses
encompass the same criminal conduct. 	State v. Graciano, 176 Wn.2d 531, 539-
40, 295 P.3d 219 (2013). 	Our review is for abuse of discretion or misapplication
of the law. 	Graciano, 176 Wn.2d at 536.
"Same criminal conduct" means "two or more crimes that require the same
criminal intent, are committed at the same time and place, and involve the same
victim." RCW 9.94A.589(1)(a). 	Hood argues that both crimes required the same
criminal intent—the intent to assault LD. The sentencing court could have
reasonably taken a different view of the evidence. 	Hood violated the no-contact
order when he approached the condo where LD lived. 	Having heard testimony
about past vandalism of the condo, the trial court could have reasonably found
that Hood did not necessarily intend an assault when he approached the condo.
The court may have found that he developed the intent to commit an assault
inside—the conduct that constituted the burglary—only after entering. We
conclude the trial court did not abuse its discretion in finding that Hood did not
meet his burden to show that his criminal intent was the same for each crime.
COMMUNITY CUSTODY TERM
At Hood's sentencing, the trial court imposed a term of 18 months of
community custody under RCW 9.94A.701. 	Hood did not object to the length of
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 73401-6-1
the term at that time. 	On appeal Hood contends the statute is ambiguous as to
the length of the community custody term for burglary in the first degree.
A challenge to a sentence that is contrary to law may be raised for the first
time on appeal. 	State v. Anderson. 58 Wn. App. 107, 110, 791 P.2d 547 (1990).
Questions of statutory interpretation are questions of law subject to de novo
review. 	State v. Franklin, 172 Wn.2d 831, 835, 263 P.3d 585 (2011).
The goal of statutory interpretation is to discern and implement the
legislature's intent. 	State v. Armendariz, 160 Wn.2d 106, 110, 156 P.3d 201
(2007). 	In interpreting a statute, we first look to the statute's plain language.
Armendariz, 160 Wn.2d at 110. Where the plain language of the statute is
subject to more than one reasonable interpretation, it is ambiguous. Armendariz,
160 Wn.2d at 110. To determine the plain meaning of a statute, the court looks
to the text, the context of the statute in which the provision is found, related
provisions, and the statutory scheme as a whole. 	State v. Jones, 172 Wn.2d
236, 242, 257 P.3d 616 (2011).
In relevant part, the statute provides:
(1) If an offender is sentenced to the custody of the department for
one of the following crimes, the court shall, in addition to the other
terms of the sentence, sentence the offender to community
custody for three years:
(b) A serious violent offense.
(2) A court shall, in addition to the other terms of the
sentence, sentence an offender to community custody for eighteen
months when the court sentences the person to the custody of the
department for a violent offense that is not considered a serious
violent offense.
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No. 73401-6-1
(3) A court shall, in addition to other terms of the sentence,
sentence an offender to community custody for one year when the
court sentences the person to the custody of the department for:
(a) Any crime against persons under RCW 9.94A.411(2).
RCW 9.94A.701 (emphasis added).
Burglary in the first degree is a "violent offense." See RCW
9.94A.030(55)(i) ("violent offense" means "any felony defined under any law as a
class A felony"); RCW 9A.52.020(2) ("Burglary in the first degree is a class A
felony"). 	Thus, it falls within RCW 9.94A.701(2), which requires a community
custody term of 18 months for a violent offense. 	But burglary in the first degree
is also a "crime against persons" under RCW 9.94A.411 (2). It therefore also falls
within RCW 9.94A.701(3)(a), which requires a community custody term of 12
months for a crime against persons. 	Hood contends the legislature created an
ambiguity by placing the crime of first degree burglary in two different categories
and that the ambiguity must be resolved by shortening his term of community
custody to 12 months in accordance with the rule of lenity.
Burglary in the first degree is not the only crime that falls into more than
one category. 	"Serious violent offenses" and "violent offenses" are listed at RCW
9.94A.030(46) and (55), respectively. 	Many, if not most, of the crimes on the
"serious violent offense" and "violent offense" lists are also listed as "crimes
against persons" under RCW 9.94A.411 (2).
Statutes must be interpreted and construed so that all language used is
given effect, with no portion rendered meaningless or superfluous. 	State v. J.P.,
149 Wn.2d 444, 450, 69 P.3d 318 (2003). 	Ifwe adopted Hood's interpretation of
the statute, RCW 9.94A.701(1)(b) and (2) would be rendered largely superfluous
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No. 73401-6-1
because many "serious violent offenses" and "violent offenses" could only be
punished with 12 months of community custody instead of the 3 years or 18
months the legislature prescribed in subsections (1)(b) and (2).
The statute sets up a tiered step-down sentencing structure depending on
the seriousness of the crime: 3 years of community custody is imposed for
"serious violent offenses"; 18 months for "a violent offense that is not considered
a serious violent offense"; and 12 months for crimes against persons. 	RCW
9.94A.701(1)(b), (2), (3)(a). The statutory scheme as a whole establishes that
the legislature intended for individuals who commit violent offenses to receive a
longer term of community custody than individuals who commit nonviolent crimes
against persons. This is consistent with the legislature's purpose to "ensure that
the punishment for a criminal offense is proportionate to the seriousness of the
offense and the offender's criminal history." RCW 9.94A.010(1).
For crimes that are listed as both serious violent offenses and violent
offenses, the legislature eliminated the appearance of ambiguity by stating that
the court shall sentence an offense to 18 months of community custody for a
"violent offense that is not considered a serious violent offense." 	RCW
9.94A.701(2). 	Hood points out that the legislature did not include this type of
clarifying language in RCW 9.94A.701(3)(a) for crimes that are listed both as
violent offenses and crimes against persons. Therefore, he argues, it is not clear
that the legislature intended an offense listed as both a violent offense and a
crime against persons to be punished as a violent offense.
We disagree. The clarifying language in subsection (2) is more accurately
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No. 73401-6-1
viewed as an expression of the legislature's intent to create a tiered step-down
sentencing structure, as detailed above. 	To determine the plain meaning of
subsection (3)(a), it should be interpreted in a way that is consistent with the
overall statutory scheme.
We conclude RCW 9.94A.701 is not ambiguous as to the length of the
community custody term for burglary in the first degree. The only reasonable
reading of RCW 9.94A.701 is that it requires a term of 18 months of community
custody for a violent offense that is not considered a serious violent offense,
even if it is also a crime against persons. 	Because the potential ambiguity can
be reconciled in a way that reflects the legislature's clear intent, we do not apply
the rule of lenity. 	State v. Oakley, 117 Wn. App. 730, 734, 72 P.3d 1114(2003),
review denied, 151 Wn.2d 1007 (2004). 	The trial court correctly applied RCW
9.94A.701(2) and sentenced Hood to 18 months of community custody for first
degree burglary.
APPELLATE COSTS
In his opening brief, Hood asks us not to impose appellate costs in the
event that the State prevails on appeal and seeks costs. 	The State does not
respond. 	Under RCW 10.73.160(1), this court has discretion to decline to
impose appellate costs on appeal. 	State v. Sinclair, 192 Wn. App. 380, 385, 388,
367 P.3d 612, review denied, 185Wn.2d 1034(2016). 	In light of Hood's indigent
status, our presumption under RAP 15.2(f) that he remains indigent "throughout
the review," and the State's failure to respond, we exercise our discretion not to
impose appellate costs.
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Affirmed.
Becker. 1 .
WE CONCUR:
Trickoy, ACJ
COX, J.
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