                                                                                                Filed
                                                                                          Washington State
                                                                                          Court of Appeals
                                                                                           Division Two

                                                                                            May 19, 2020
    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II
 STATE OF WASHINGTON,                                                 No. 52806-1-II

                                Respondent,

         v.

 DALE LEE PAEPER,                                              UNPUBLISHED OPINION

                                Appellant.

       CRUSER, J. — Dale Lee Paeper appeals his conviction for possession of a stolen vehicle.

Paeper argues that the trial court’s instruction defining knowledge violated his right to due process,

and he received ineffective assistance of counsel.

       We decline to address the merits of Paeper’s claim of instructional error pursuant to the

invited error doctrine and hold that Paeper fails to show that he was deprived of effective assistance

of counsel. We affirm.

                                              FACTS

       On August 15, 2018, Jose Laigo reported his Honda Accord stolen from the Muckleshoot

Casino Resort parking lot. On the same day, an Auburn police officer saw a Honda Accord being

closely followed by a second car in an alley, which paralleled the street the officer was driving on.

It was later determined that Paeper was driving the Accord. The officer provided dispatch with

the license plate number. The car was not identified as stolen.

       The next day, police officers responded to a call concerning unwanted individuals in a Wal-

Mart parking lot. Upon arrival, an officer noticed a Honda Accord with its trunk open. The officer

observed Paeper working inside of the trunk for several minutes. Paeper was working in the
NO. 52806-1-II


taillight region on both sides of the trunk and below the interior of the trunk. The officer relayed

the license plate number to dispatch, and dispatch identified the car as stolen. Paeper was arrested

and charged with one count of unlawful possession of a stolen vehicle.

       Paeper’s case proceeded to trial. Paeper’s counsel and the State proposed jury instructions.

Both parties proposed an instruction that contained the following language:

             A person knows or acts knowingly or with knowledge with respect to a fact
       when he or she is aware of that fact.

               If a person has information that would lead a reasonable person in the same
       situation to believe that a fact exists, the jury is permitted but not required to find
       that he or she acted with knowledge of that fact.

Clerk’s Papers (CP) at 42, 107. The court instructed the jury on knowledge using the proposed

language.

       The jury found Paeper guilty as charged. He now appeals.


                                          DISCUSSION

                                       I. JURY INSTRUCTION

       Paeper argues that the court’s instruction defining knowledge violated his right to due

process because it relieved the State of its burden to prove every element of the crime charged by

permitting the jury to find him guilty based on constructive knowledge rather than actual

knowledge. Paeper argues that this error is a manifest constitutional error that requires reversal of

his conviction. We decline to review Paeper’s claim of error.

       The invited error doctrine prohibits “‘a party from setting up an error at trial and then

complaining of the error on appeal.’” City of Seattle v. Patu, 147 Wn.2d 717, 720, 58 P.3d 273

(2002) (quoting State v. Pam, 101 Wn.2d 507, 511, 680 P.2d 762 (1984), overruled on other


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NO. 52806-1-II


grounds by State v. Olson, 126 Wn.2d 315, 893 P.2d 629 (1995)). In determining whether an error

was invited, a reviewing court considers whether the defendant affirmatively assented to the error,

materially contributed to it, or benefited from it. In re Pers. Restraint of Coggin, 182 Wn.2d 115,

119, 340 P.3d 810 (2014).

        Invited error prevents review of instructional errors even if they are of constitutional

magnitude. Patu, 147 Wn.2d at 720. Therefore, a party may not request a jury instruction and

complain on appeal that the requested instruction was given. State v. Hood, 196 Wn. App. 127,

131, 382 P.3d 710 (2016). In Patu, the “to convict” jury instruction omitted an essential element

of a crime charged. 147 Wn.2d at 720. The court held that the erroneous instruction was grounds

for reversal, but the court’s review of the defendant’s constitutional claim was barred by his own

proposal of the defective instruction. Id. at 721.

        Similarly, in State v. Henderson, the defendant claimed that an instructional error violated

his due process rights to have the jury instructed on the definition of every element of the offense

charged. 114 Wn.2d 867, 869, 792 P.2d 514 (1990). Because the trial court gave the jury

instructions at the defendant’s request, the court held that “even if error was committed, of

whatever kind, it was at the defendant’s invitation and he is therefore precluded from claiming on

appeal that it is reversible error.” Id. at 870.

        The principles set forth in Patu and Henderson directly apply to this case. Here, Paeper

argues that the trial court’s instruction defining knowledge violated his right to due process. Paeper

argues that this alleged instructional error is a manifest constitutional error that requires reversal

of his conviction. However, Paeper’s counsel proposed the knowledge instruction that he argues




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NO. 52806-1-II


was defective. Because Paeper was the proponent of the instruction that he now seeks to challenge

on appeal, the invited error doctrine precludes review of the merits of his alleged error.

       Accordingly, we hold that Paeper’s instructional error claim is barred under the invited

error doctrine.

                            II. INEFFECTIVE ASSISTANCE OF COUNSEL

       Paeper argues that he received ineffective assistance of counsel because his counsel

needlessly proposed a duplicative jury instruction on knowledge. Paeper argues that proposing

the instruction constituted deficient performance because only the State has the duty to propose

jury instructions and caused him prejudice because it “potentially” barred his right to appeal. Br.

of Appellant at 17. We disagree.

       The right to counsel includes the right to effective assistance of counsel. State v. Crawford,

159 Wn.2d 86, 97, 147 P.3d 1288 (2006). To show ineffective assistance of counsel, a defendant

must show (1) that defense counsel’s conduct was deficient and (2) that the deficient performance

resulted in prejudice. State v. Reichenbach, 153 Wn.2d 126, 130, 101 P.3d 80 (2004). We do not

address both prongs of the test when the defendant’s showing on one prong is insufficient. State

v. Foster, 140 Wn. App. 266, 273, 166 P.3d 726 (2007).

       There is a strong presumption of effective assistance, as we are “highly deferential to the

performance of counsel.” Crawford, 159 Wn.2d at 98. To show deficient performance, Paeper

must show that defense counsel’s performance fell below an objective standard of reasonableness

based on the record established in the proceedings below. State v. McFarland, 127 Wn.2d 322,

335, 899 P.2d 1251 (1995). To show prejudice, Paeper must also show that “there is a reasonable




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probability that, except for counsel’s unprofessional errors, the result of the proceeding would have

been different.” Id.

       Paeper argues that his counsel was deficient because, unlike the State, he had no obligation

to propose a knowledge instruction, but he nevertheless proposed the same knowledge instruction

as the State. He argues that this was not a legitimate tactical decision because by proposing the

allegedly erroneous instruction, counsel foreclosed or burdened Paeper’s right to appeal under the

invited error doctrine. Paeper also argues that he was prejudiced because it “potentially” waived

his right to appeal. Br. of Appellant at 17.

       Here, both the prosecutor and defense counsel proposed the knowledge instruction that

Paeper challenges on appeal. Even if we determine that the WPIC instruction was erroneous, it

was correct at the time defense counsel proposed the instruction and at the time it was given to the

jury. State v. Studd, 137 Wn.2d 533, 551, 973 P.2d 1049 (1999) (determining counsel was not

deficient because “counsel can hardly be faulted for requesting a jury instruction based upon a

then-unquestioned WPIC”).

       Furthermore, Paeper’s prejudice argument is based on possible burdens that he may

encounter at the appellate level. However, in order to satisfy the prejudice prong for an ineffective

assistance of counsel claim, the defendant must show that but for his counsel’s proposal of the

instruction, the result of his proceeding would have been different. McFarland, 127 Wn.2d at 335.

Paeper does not argue that but for his counsel’s proposal of the allegedly erroneous instruction,

the outcome of his trial would have been different.

       Even if we conclude that Paeper properly argued prejudice, he still cannot show that the

proceedings below would have differed. The State proposed the same knowledge instruction as


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defense counsel, and Paeper did not object to the State’s proposed instruction. Thus, even if

Paeper’s counsel had not proposed such instruction, the court would have used the same language

to instruct the jury on the definition of knowledge.1

         Therefore, we hold that Paeper’s counsel did not render ineffective assistance by proposing

a duplicative instruction.

                                          CONCLUSION

         We hold that the invited error doctrine precludes review of Paeper’s claim that the trial

court erred in giving his proposed knowledge instruction, and that Paeper did not receive

ineffective assistance of counsel. Accordingly, we affirm.

         A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,

it is so ordered.



                                                      CRUSER, J.
    We concur:



    MAXA, P.J.




    GLASGOW, J.




1
  Paeper does not argue that his counsel was ineffective for failing to object to the State’s proposed
instruction.
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