       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

THE STATE OF WASHINGTON,                 )
                                         ) No. 78089-1-1
                     Respondent,         )
                                         ) DIVISION ONE
              v.                         )
                                         )
NICHOLAS CONAN ORN,                      ) UNPUBLISHED OPINION
                                         )
                     Appellant.          )
                                         ) FILED: November 18, 2019


       SMITH, J. — Nicholas C. Orn appeals his conviction for attempted first

degree murder. He argues that the jury was improperly instructed and that the

trial court erred by excluding evidence that the victim was involved in a later

incident that led to his becoming a confidential informant. In a statement of

additional grounds for review, Orn also argues that he was deprived of his right to

confront witnesses because the State decided not to call Ian Warmington, one of

the detectives who processed the crime scene.

       We hold that the jury was properly instructed because the jury instructions,

taken as a whole, properly informed the jury of the applicable law, were not

misleading, and allowed Orn to argue his theory of the case. We also hold that

because the evidence regarding the victim's criminal activities was properly

excluded under established evidence rules, its exclusion did not deprive Orn of

his right to present a defense or his right to confront witnesses. Finally, we

conclude that the State's decision not to call Detective Warmington did not
No. 78089-1-1/2

                                       FACTS

       This case arises from a shooting that occurred at the Rock Creek Landing

apartment complex in Kent. In May or June of 2016, the victim, Thomas Darling-

Seamans, moved in with his mother, Debra Darling, in her apartment unit at the

complex. When things became too crowded after a friend of Darling-Seamans'

also began staying at Darling's apartment, Darling rented a garage unit at the
                                              1
                                              I
complex so that "the kids could put their thins
                                          thin i n the unit." Ultimately, Darling-

Seamans and his friend began living in the garage unit. Darling-Seamans

converted it into a living space, with sheets dividing the "living room" area at the

front of the garage from the beds in the back

       Darling-Seamans, a self-described "proactive pothead[Xwas smoking

marijuana in the garage one day with the door open when Kimberly Boals, who
                                              I
lived in the complex with Orn, her boyfriend, walked by and offered to pay

Darling-Seamans "a couple dollars for a hit." Darling-Seamans "was like don't

even worry about it, come on in, join." After that, Boals visited Darling-Seamans

often and "would just cry about her problems and ... her relationship" with Orn.

Although Darling-Seamans and Orn had smOked together "Mike once[,]" Darling-

Seamans did not know Orn very well: "Pie were cordial but not friends."

       On July 17, 2016, Boals and Orn broke up. Boals later testified that Orn

moved out the next day, July 18, 2016. Orn took some of his belongings, left

behind other items that were either his or that he and Boals shared, and moved

in with his father.

       Boals, who was not working at the time, became worried about having




                                          2
No. 78089-1-1/3

enough money to pay rent. According to her later testimony, BoaIs, assisted by

Darling-Seamans, identified some items in BoaIs's apartment that she could sell

for rent money, and placed them in a blue tote. BoaIs testified that this happened

on July 18, 2016, i.e., the same day that Orn moved out. According to Darling-

Seamans, he purchased the items in the tote from BoaIs for 60 or 70 dollars.

Additionally, BoaIs agreed to give a portable air conditioning (AC) unit to Darling-

Seamans in exchange for 40 dollars' worth of marijuana.

       BoaIs and Darling-Seamans went back to Darling-Seamans' garage with

the blue tote and the AC unit and "were just chilling" when, a short time later, Orn

and his father came to the complex to pick up the rest of Orn's belongings. They

discovered BoaIs and Darling-Seamans in the garage unit, "a bunch of us

smoking weed and, you know, the AC unit was there and then the tote." BoaIs

later testified that Orn "was upset because it was obviously without his

permission." Darling-Seamans later described Orn as "[p]issed as fuck" and

"[s]haking, yelling he wanted his stuff back." Darling-Seamans gave the blue tote

to Orn. He also worked out an agreement to keep the AC unit in exchange for

paying Orn additional money for it in the future.

       About two weeks later, the morning of August 2, 2016, Orn went to BoaIs's

apartment. According to BoaIs's later testimony, the two went to the bank, had a

meal, and "kind of just had said our good-byes, kind of more mutual,... you

know, maybe we can be friends." Boals recalled that when the two parted ways

that early afternoon,"we were pretty calm. It was kind of like the good-bye, you

know, you kind of would want in a relationship, kind of see you around and stay




                                         3
No. 78089-1-1/4

in contact kind of thing."

       Later that evening, around 8:30 or 9:00 p.m., Boals was walking back from

the garbage dumpster after throwing some things away when she saw Orn pull

up and get out of his car with a rifle. Boals later testified that Orn was "angry,

irrational, not in a good state of mind" and that he was acting "totally. . .

opposite, like a flip" from the way he had been acting when she saw him earlier

that day. Boals testified that Orn was upset nd that "he was going to go

confront [Darling-Seamans]." Although she could not recall exactly what Orn

said, she testified that Orn "had the gun and he was going to at least threaten

and/or shoot [Darling-Seamans]." The two ultimately made their way to Boals's

apartment. Boals later testified that while they were standing in the kitchen, Orn,

who had brought his rifle with him, "put the clip on the gun." Boals testified that

she was frightened and threatened to get law enforcement involved. Boals

recalled that Orn "didn't seem concerned" or said something to the effect of, "I

don't want to hurt you as well, ... don't do that." Boals recalled threatening

again to "call the cops or get help of some kind . . . to stop this from happening[,]"

and then Orn walked out the door with his pin. Boals went to the bathroom

"because at that point, I mean, I had—there was nothing I could do."

       As Boals was finishing up in the bathroom, Orn walked into the doorway

and, according to Boals, "had the rifle under his chin and was threatening

himself." Boals later testified that she said "don't do that," but that Orn said, "I'm

going to do it because I just shot[Darling-Semans] like 20 times." Boals

recalled that she was shocked, ran past Orn out of the apartment, discovered




                                          4
No. 78089-1-1/5

Darling-Seamans shot and bleeding, and ran to try to get help.

       Darling-Seamans, who at the time was working a night shift, later testified

that he had been lying the couch in his garage before going to work when, all of a

sudden, the door "just kind of yanked open, and . . . 1 jerked up and saw[Om]

standing there pointing a gun at me as he asked real quick where's my stuff at."

Darling-Seamans testified that he stood up, said "dude," and "that was pretty

much it." "It was like right when I stood up, it was over. I got hit right here first

time, shot me to the side and just littered my whole left side with bullets."

Darling-Seamans testified that when the shooting began, he went into "flight"

mode and turned around and ran toward the back of his garage while Orn was

"still standing there just ping, ping, ping like I m a little duck, and he was just like

on me, on me, on me, on me." Darling-Seamans testified that he tried to take

cover underneath a dirt bike in the back of his garage. "I just kind of tucked

underneath and I was right by my bed, and Icouldn't tell if he came in or not. I

was still getting layered with bullets." When the shooting stopped, Darling-

Seamans got to his feet, stumbled toward the apartment complex, and banged

on a door for help. At least two neighbors cOed 911, Kent police responded to

the scene, and Darling-Seamans was taken to Harborview. Although Darling-

Seamans suffered numerous bullet wounds, he survived.

       The State charged Orn with one count of assault in the first degree and

one count of attempted murder in the first degree. Before trial, the State moved

in limine to exclude evidence that Darling-Seamans "was being employed by the

Kent Police Department as a confidential informant based upon a completely




                                            5
No. 78089-1-1/6

unrelated situation." Specifically, the State moved "to exclude defense from

introducing any evidence of this arrangement, as well as the underlying alleged

criminal activity the victim may be involved in, which led to his agreement with

Kent Police." Meanwhile, Orn moved in limine to admit that evidence, arguing

that "[s]uch instances of potentially avoidable prosecution by the same police

department at issue herein, reflect bias, lack oftruthfulness, and bad acts-motive,

intent, absence of mistake, and concerns the same subject matter at issue

herein, to wit., stolen property, firearms." The trial court ruled that it would allow

only "very limited inquiry on this." It explained that although it would not allow

any questioning "regarding the agreement itself or the nature of the agreement or

the case[,]" it would allow defense counsel to ask Darling-Seamans something to

the effect of,"and isn't it true that since the incident you've. . . done some work

with the Kent Police Department?" It reasoned that this limited inquiry was

relevant to Darling-Seamans' potential bias.

       Later, after Darling-Seamans testified that he "just stay[s] proactive in not

doing anything out of the question really[,]"Orn asked the trial court to reconsider

its ruling. Specifically, Orn's counsel requested the court's permission to ask

Darling-Seamans,"Is it true you've been arrested by the police and you have a

deal, agreement with the police to help them on narcotics, stolen property,

firearms in return for nonforwarding of the allegation to the prosecutor, correct?"

Orn argued that Darling-Seamans had "open[ed] the door" to this line of

questioning when he testified to the effect that he was not doing anything "out of

the question." The trial court disagreed and stood by its earlier ruling, explaining




                                          6
No. 78089-1-1/7

that "I don't think that that opens the door to impeach him on every wrong thing

he might have done in his life."

       A jury found Orn guilty of both assault in the first degree and attempted

murder in the first degree, in each case while armed with a firearm. The court

vacated the assault conviction and adjudged Orn guilty of attempted murder in

the first degree with a firearm enhancement. Orn appeals.

                                     ANALYSIS

                                   July Instructions.

       Orn argues that reversal is required because the court's to-convict

instruction failed to instruct the jury on each element of attempted first degree

murder. We disagree.

      "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. lmokawa, No. 96217-1, slip op. at 6

(Wash. Oct. 10, 2019), http://www.courts.wa gov/opinions/pdf/962171.pdf

(quoting State v. Brown, 147 Wn.2d 330, 339, 58 P.3d 889 (2002)). "When a

defendant challenges the adequacy of specific jury instructions informing the jury

of the State's burden of proof, we review the challenged instructions de novo in

the context of the instructions as a whole." lmokawa, slip op. at 6-7.

"Instructions satisfy the requirement of a fair trial when, taken as a whole, they

properly inform the jury of the applicable law are not misleading, and permit the

defendant to argue his [or her] theory of the case." Imokawa, slip op. at 7




                                          7
No. 78089-1-1/8

(alteration in original)(quoting State v. Till, 139 Wn.2d 107, 126, 985 P.2d 365

(1999)).

       "Generally, it is sufficient to explicitly instruct the jury that the State must

prove beyond a reasonable doubt the statutory elements of the crime." Imokawa,

slip op. at 7. To that end, RCW 9A.28.020(1) defines the elements of criminal

attempt and provides,"A person is guilty of an attempt to commit a crime if, with

intent to commit a specific crime, he or she does any act which is a substantial

step toward the commission of that crime." In other words,"an attempt crime

contains only two elements—[1] intent to coMmit a specific crime and [2] taking a

substantial step toward the commission of that crime." State v. Nelson, 191

Wn.2d 61, 74, 419 P.3d 410 (2018).

       Here, the court's to convict instruction which is consistent with WPIC

100.02, instructed the jury as follows:

               To convict the defendant of the crime of attempted murder in
       the first degree, as charged in Count I, each of the following
       elements of the crime must be proved beyond a reasonable doubt:
              (1) That on or about August 2, 2016, the defendant did an
       act that was a substantial step toward the commission of murder in
       the first degree;
              (2) That the act was done with the intent to commit murder in
       the first degree; and
              (3) That the act occurred in the State of Washington.
               If you find from the evidence that each of these elements
       has been proved beyond a reasonable doubt, then it will be your
       duty to return a verdict of guilty as to Count I.
               On the other hand, if, after weighing all the evidence, you
       have a reasonable doubt as to any one of these elements, then it
       will be your duty to return a verdict of not guilty as to Count LP]




       1 WPIC 100.02 provides:



                                           8
No. 78089-1-1/9


The court provided another instruction, Instruction No. 10, which defined murder

in the first degree:"A person commits the crime of murder in the first degree

when, with premeditated intent to cause the death of another person, he or she

causes the death of such person

       The court's instructions were adequate. Specifically, the to-convict

instruction set forth both statutory elements Of attempt; no elements were missing

from the instruction. Additionally, when taken together, the instructions informed

the jury of the applicable law, were not misleading, and permitted Orn to argue

his theory of the case. To this end, Orn indicated in his trial memorandum that

he "anticipates that the evidence presented in trial will include that the Defendant

was not acting with premeditated intent or with a design to kill." And his counsel

argued at length in closing that the evidence was insufficient to prove that Orn



       To convict the defendant of the crime of attempted (fill in crime),
       each of the following elements of the crime must be proved beyond
       a reasonable doubt:
              (1) That on or about (date), the defendant did an act that
                   was a substantial step toward the commission of (fill in
                   crime);
              (2) That the act was done with the intent to commit (fill in
                   crime); and
              (3) That the act occurred in the State of Washington.
               If you find from the evidence that each of these elements
       has been proved beyond a reasonable doubt, then it will be your
       duty to return a verdict of guilty.
               On the other hand, if, after weighing all the evidence, you
       have a reasonable doubt as to any one of these elements, then it
       will be your duty to return a verdict of not guilty.
                                       I
       11A WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS:
CRIMINAL 100.02, at 434 (4th ed. 2016).
       2 The language omitted from the end qf Instruction No. 10 was related to
Orn's self-defense claim and is not relevant here.

                                         9
No. 78089-1-1/10

had the requisite mental state. Therefore, reversal is not required.

       Orn disagrees. He contends that premeditation is an essential element of

attempted first degree murder. Thus, he argues, the trial court committed

reversible error when it omitted premeditation from the to-convict instruction. Orn
                                             I
chiefly relies on State v. Vangerpen, 125 Wn.2d 782, 888 P.2d 1177 (1995), to

support his argument, but his reliance on Vanoerpen is misplaced for two

reasons.

       First, Vangerpen did not hold that premeditation is an essential element of

attempted first degree murder. Instead, as Orn himself acknowledges, the State

conceded in Vangerpen that premeditation was an essential element; therefore,

that issue simply was not before the court. See Vangerpen, 125 Wn.2d at 785-

86; see also State v. Boswell, 185 Wn. App. 321, 336, 340 P.3d 971 (2014)

("Vangerpen does not articulate what the essential elements of attempted first

degree murder are.").

       Second, Vancierpen involved a challenge to a charging document, not a

challenge to a jury instruction. Vangerpen, 125 Wn.2d at 787. "The rule that a

charging document must include all essential elements of a crime is grounded in

the constitutional requirement that defendants be informed of the nature and
                                            i
cause of the accusation against them, in addition to due process concerns

regarding notice." State v. Taylor, 140 Wn.2d 229, 236, 996 P.2d 571 (2000).

Meanwhile, "'a to convict instruction must contain all of the elements of the crime
                                            1
because it serves as a yardstick by which the jury measures the evidence to

determine guilt or innocence." State v. DeRvke, 149 Wn.2d 906, 910, 73 P.3d




                                        10
No. 78089-1-1/11

1000(2003)(internal quotation marks omitted)(quoting State v. Smith, 131

Wn.2d 258, 263, 930 P.2d 917 (1997)). In other words, the to-convict instruction

ensures "that the jury is not left guessing at the meaning of an element of the

crime and that the State is not relieved of its burden of proving each element of

the crime." State v. Saunders, 177 Wn. App. 259, 261, 311 P.3d 601 (2013).

Therefore, "the fact that a portion of a definition must be included in a[]...

[charging document] does not mean it is essential to a to-convict instruction."

Saunders, 177 Wn. App. at 270. Thus, Vangerpen does not control.

       Rather, DeRvke is instructive here. In that case, our Supreme Court

reiterated that the crime of attempt has only two elements. DeRvke, 149 Wn.2d

at 910. It also expressly approved of instructing the jury on attempt using WPIC

100.02 and using a separate instruction to set forth the elements of the crime

allegedly attempted. DeRyke, 149 Wn.2d at 911. Indeed, the Supreme Court

itself later characterized DeRyke as "reiterat[ing] . . . that an attempt instruction

does not have to provide the elements of the crime allegedly attempted." Nelson,

191 Wn.2d at 74(emphasis added). Here, by instructing the jury on attempt
                                         1
through WPIC 100.02 and using a separate instruction to set forth the elements

of first degree murder, the trial court followed the same approach expressly

approved of in DeRvke. This was not error. Indeed, we have relied on DeRvke

to reject exactly the argument that Orn makes here. See, e.q., State v. Jefferson,

199 Wn. App. 772, 809-10, 401 P.3d 805 (2017), rev'd on other grounds, 192

Wn.2d 225, 429 P.3d 467(2018); Boswell, 185 Wn. App. at 336-37; cf. State v.

Reed, 150 Wn. App. 761, 772, 208 P.3d 1274(2009)(rejecting the same




                                          11
No. 78089-1-1/12

argument and stating that it "conflates the intent necessary to prove an attempt

with that necessary to prove first degree murder.").

       As a final matter, Orn reasons that "by requiring the jury find only that Mr.

Orn intended to commit first degree murder, the instruction told the jury it was

enough that he intended to premeditate the intent to cause death." He contends

that as a result, the instruction is similar to the defective instruction in State v.

Smith, 131 Wn.2d 258, 930 P.2d 917(1997) In Smith, which involved a

conspiracy charge, the to-convict instruction should have required the jury to find

that the defendant agreed with his alleged co-conspirators to engage in conduct

constituting the crime of first degree murder. Smith, 131 Wn.2d at 262. Instead,

the instruction required the jury to find that the defendant agreed with his alleged

co-conspirators "to engage in ... the performance of conduct constituting the

crime of Conspiracy to Commit Murder in the First Degree." Smith 131 Wn.2d

at 261 (first alteration added; emphasis added). Our Supreme Court held that

this instruction was "constitutionally defective because it purports to be a

complete statement of the law yet states the wrong crime as the underlying crime

which the conspirators agreed to carry out." Smith, 131 Wn.2d at 263(emphasis

added).

       The to-convict instruction here did not suffer from the same defect.

Rather, it stated the correct crime, i.e., first degree murder, as the underlying

crime that Orn allegedly attempted to carry out. Moreover, the instruction in

Smith was, as a result of the defect, entirely circular: It instructed the jury to find

the defendant guilty of conspiracy if he engaged in conduct constituting




                                           12
No. 78089-1-1/13

conspiracy. Thus, as the Smith court explained, the instruction "fails to state the

law completely and correctly." Smith, 131 Wn.2d at 263. Here, by contrast, the

to-convict instruction completely and correct y stated the law. Specifically, it

required the jury to find that Orn "did an act that was a substantial step toward

the commission of murder in the first degree' and that "the act was done with the

intent to commit murder in the first degree." When taken together with the

definition of murder in the first degree, the instruction required the jury to find that

the act was done with the intent to "with a premeditated intent to cause the death

of another person,... cause[]the death of such person." In other words, the

jury could not have convicted Orn of attempted first degree murder without

finding that he intended to cause the death of another person with premeditated

intent to cause the death of another person. The instruction did not relieve the

State of its burden.

          Exclusion of Evidence of Darling-Seamans'Criminal Activities

       Orn argues that by excluding evidence of Darling-Seamans' criminal

activities underlying his confidential informant arrangement with law enforcement,

the trial court deprived him of his Sixth Amendment rights to confront witnesses

and to present a defense. We disagree.

       We review de novo a claim of denial of Sixth Amendment rights. State v.

Jones, 168 Wn.2d 713, 719, 230 P.3d 576 (2010). The Sixth Amendment to the

United States Constitution guarantees the defendant a right to defend against
                                           ,
criminal allegations. State v. Ward,8 Wn. App. 2d 365, 370, 438 P.3d 588

(2019). It also guarantees the defendant the right to confront and cross-examine




                                          13
No. 78089-1-1/14

adverse witnesses. State v. Darden, 145 Wn.2d 612, 620,41 P.3d 1189 (2002).

       But these rights are not absolute, and "'[t]he accused does not have an

unfettered right to offer [evidence] that is incompetent, privileged, or otherwise

inadmissible under standard rules of evidence." State v. Lizarraga, 191 Wn.

App. 530, 553, 364 P.3d 810(2015)(second alteration in original)(quoting Taylor

v. Illinois, 484 U.S. 400, 410, 108 S. Ct. 646, 98 L. Ed. 2d 798 (1988)); see also

Holmes v. South Carolina, 547 U.S. 319, 326-27, 126 S. Ct. 1727, 164 L. Ed. 2d

503(2006)(observing that the Constitution permits judges to exclude evidence

under well-established rules of evidence). To that end, we review rulings on the

admissibility of evidence for abuse of discretion, and we may affirm such rulings

on any basis supported by the record. State v. Kennealy, 151 Wn. App. 861,

879, 214 P.3d 200 (2009).

       Here, Orn does not analyze whether the trial court abused its discretion

under the evidence rules when it excluded evidence of Darling-Seamans'

criminal activities. But it did not. Specifically, ER 404(b) provides that

"[e]vidence of other crimes, wrongs, or acts is not admissible to prove the

character of a person in order to show action in conformity therewith." That said,

the trial court has discretion to admit otherwise inadmissible evidence on cross-

examination "if the witness 'opens the door' during direct examination and the

evidence is relevant to some issue at trial." State v. Stockton, 91 Wn. App. 35,

40, 955 P.2d 805 (1998). "For example, when a witness testifies to his good

character on direct examination, the opposing party is entitled to make further

inquiries on the subject during cross-examination even though that evidence




                                         14
No. 78089-1-1/15

would otherwise be inadmissible." Stockton, 91 Wn. App. at 40. "But a passing

reference to a prohibited topic during direct does not open the door for cross-

examination about prior misconduct." Stockton, 91 Wn. App. at 40.

       Darling-Seamans' statement that he is a "proactive pothead" who "just

stay[s] proactive in not doing anything out of the question really" was at most a

passing reference to his character. It does nOt, as Orn would have us believe,

constitute an affirmative statement that he is '"law-abiding." Indeed, Darling-

Seamans volunteered during his direct testimony that on the night of the shooting

he had taken "Ecstasy," a drug he acknowledged was illegal. Thus, the trial court

did not abuse its discretion by ruling that Darling-Seamans' testimony did not

open the door to the otherwise inadmissible evidence of his criminal activities.

There was no evidentiary error here. And because Orn does not argue that the

trial court applied an evidentiary rule that was arbitrary or disproportionate to the

ends it was designed to serve, there also was no constitutional error. Cf.

Holmes, 547 U.S. at 326 ("[T]he Constitution . . . prohibits the exclusion of

defense evidence under rules that serve no legitimate purpose or that are

disproportionate to the ends that they are asserted to promote.").

       Instead of analyzing the trial court's ruling under the evidence rules, Orn

argues that "the evidence was admissible unless the State could establish its

admission would prejudice the fact-finding process." He relies on State v. Jones

to support his argument. But Jones involved the trial court's exclusion of

"evidence of extremely high probative value" constituting the defendant's "entire

defense." Jones, 168 Wn.2d at 721. Here, Orn sought to introduce evidence of




                                         15
No. 78089-1-1/16

Darling-Seamans' criminal activities to call his credibility into question; the

evidence was not Orn's entire defense. Therefore, Jones is readily

distinguishable and does not control.

                         Statement of Additional Grounds

       In a statement of additional grounds for review, Orn alleges that the State

"[b]urned" Detective Warmington as a witness by deciding not to call him to

testify and then allowing him to be present in the courtroom during another

detective's testimony. He alleges further that "[d]efense was made aware of this

only after-the-fact" and that "[t]his prevented us from cross-examination of the

witness because the prosecut[o]r didn't call on him for examination, and kept

[d]efense from calling him . . . due to his being present to [another detective]'s

related testimony." Orn argues that, as a result, his right to confront witnesses

was violated because he was unable to "confront Detective Warmington's
                                             1
[e]vidence collection, and his [g]raphs presented to the jury."

       But the State is not required to call every witness on its list. And the point

at which Orn's counsel became aware of the State's decision, as well as whether

Detective Warmington was present for another witness's testimony, are matters
                                             !
outside the record that we do not consider in this direct appeal. State v.

McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995). Furthermore, Orn had

the opportunity to cross-examine Detective Moore, who handled the evidence

collection with Detective Warmington and created the crime scene diagram with

Detective Warmington. Therefore, Orn's argument fails.




                                          16
No. 78089-1-1/17

      We affirm.




WE CONCUR:




                   17
