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                                                                                                    BY




    IN THE COURT OF APPEALS OF THE STATE OF WAS

                                                   DIVISION II

 STATE OF WASHINGTON,                                                                   No. 45965 -5 -II


           Respondent and Cross -Appellant,


           V.



 ERIC S. MORRISSEY,                                                               UNPUBLISHED OPINION


           Appellant and Cross -


           JOHANSON, C.J. —            Eric Morrissey appeals his jury trial conviction for first degree

manslaughter and argues that (1) the jury instructions impermissibly lowered the State' s burden of

proof, (2) insufficient evidence supports his conviction, (3) the jury returned inconsistent verdicts,

and ( 4)   the trial   court   unconstitutionally       ordered     him to pay fees    and costs.   We hold that ( 1) the


trial   court' s   jury    instructions     were       proper, (    2)    sufficient evidence supports Morrissey' s

convictions, (     3) the jury' s verdicts were not inconsistent,. and ( 4) Morrissey failed to preserve his

challenge       to the legal financial      obligations (     LFOs) imposed for         our review.        Accordingly, we

affirm.



                                                             FACTS


                                                I. BACKGROUND FACTS


           In August 2013, Talon Newman and Michael Hodgson were walking in downtown Shelton

when    Newman         recognized   three   men   in   an
                                                            alley   who   had   assaulted   Newman'   s   friend, Jeff Baker,
No. 45965 -5 -II



several months earlier. These three men were later identified as Jacob Rossi, Chris Noor, and Sean


Harris.'    Hodgson testified that Newman ran up to the three men and got into a seconds -long fist

fight with Rossi before Rossi ran away. Newman and Hodgson then stopped at a friend' s house

before going back to Hodgson' s apartment.

           Rossi testified that Newman was yelling and then ran up to him, started shoving him, and

got   in his face.   Rossi said that Newman punched him a few times, that he attempted to punch


Newman back but        missed, and   that   he   ran   away because he   was   afraid.   After getting separated

from his friends, Rossi went to look for Harris and again encountered Newman in the alley.

Newman punched him again and Rossi ran to a house where several other friends lived, including

Morrissey and Marquis Bullplume.

           Rossi' s group went to Brandon Lewison' s house, where Harris stayed periodically, to look

for Harris.    They found Harris and decided, with Lewison' s and Harris' s help, to walk back into

town to find their friend Noor.       But after walking around for a while and not finding Noor, the

group decided to go home.

           However, on their way home, the group again encountered Hodgson and Newman.

According to Hodgson, Newman approached the group and asked Rossi if he wanted to fight and

Rossi declined. Bullplume testified that Newman was aggressive; that he asked Rossi, Harris, and


Morrissey if they wanted to fight; that Newman got in Morrissey' s face; and that Newman shoved

Morrissey and tried to " kind of spit on him." 4 Report of Proceedings ( RP) at 674. While Hodgson




1 Jacob Rossi' s legal name is Jacob Curtis. However, both parties more frequently refer to him as
 Rossi."     Sean Harris also goes by and is referred to by the parties as Sean Davis. .

                                                           0
No. 45965 -5 -II



was asking Rossi why Newman wanted to fight him, Hodgson saw Newman fall to the ground and

saw Morrissey kneel down or bend over and start punching Newman several times.

           Rossi and Bullplume testified that they saw.Morrissey head butting Newman once before

he fell. Rossi also testified that he saw Morrissey punching Newman a " few" times when he was

on   the   ground.     3 RP     at   401.   Bullplume pulled Morrissey off Newman and they ran back to

Morrissey and Bullplume' s house. Newman later died in the hospital from his injuries.

           Nichole Gallo, an assistant manager at a nearby restaurant, testified that she thought

Newman was " motionless" when he fell to the ground after Morrissey had head butted him. 3 RP

at 594. Ira Osman, a passerby who also witnessed the altercation, testified that he saw Morrissey' s

group "    swarm[ ]"      around Hodgson and Newman. 3 RP at 504.


           Bullplume was Morrissey' s only witness at trial. Contrary to what Gallo and Hodgson had

said, Bullplume testified that Newman was not unconscious after Morrissey head butted him. He

only fell "halfway" and he " caught himself and was about to get back up" before Morrissey started

punching him. 4 RP at 676.

                                      II. TRIAL AND OTHER PROCEDURAL FACTS


           In             2014, the State                                            degree
                                                                                                       murder2—




                January                        charged   Morrissey    with second             felony               with


                                                                                                       4
second     degree    assault'    as   the   predicate   felony— and   first degree   manslaughter.         At trial, the




2 RCW 9A.32.050( 1)( b).

  RCW 9A.36. 021( 1)( a).


4 RCW 9A.32. 060.

                                                             3
No..45965- 5- II



witnesses testified consistently with the above facts.5 The State called several other witnesses,

including Dr. Richard Harruff, the King County Chief Medical Examiner, who testified that

Newman died from blunt force injury to his brain stem and spinal cord. According to Dr. Harruff,

Newman'      s   injuries   were consistent with   the State'   s   theory: that Newman died when Morrissey

got on top of him and punched him several times in the face, causing spinal cord injury when the

back of Newman' s head banged against the pavement.


          The trial court gave two jury instructions defining recklessness without objection:

                  A person is reckless or acts recklessly when he or she knows of and
           disregards a substantial risk that substantial bodily harm may occur and this
           disregard is a gross deviation from conduct that a reasonable person would exercise
           in the same situation.


Clerk' s Papers ( CP) at 106 ( emphasis added).


                  A person is reckless or acts recklessly when he or she knows of and
           disregards a substantial risk that a death may occur and this disregard is a gross
           deviation from conduct that a reasonable person would exercise in the same
           situation.



CP   at   114 ( emphasis     added).   Although one of these instructions defining recklessness was meant

to apply to second degree assault and the other was meant to apply to first degree manslaughter,

the trial court did not specifically instruct the jury on which definition goes with which charge.

The " to -convict" instruction for first degree manslaughter states,

                    To convict the defendant of the crime of manslaughter in the first degree as
           charged in Count II, each of the following elements of the crime must be proved
           beyond a reasonable doubt:
                      1) That on or about August 27, 2013, the defendant engaged in reckless
           conduct;

                     2) That Talon Newman died as a result of defendant' s reckless acts; and



5 The State also presented a surveillance video that does not show any of the actual altercation
although it helps to set out the timeline of events.


                                                          M
No. 45965 -5 -II



                      3) That any of these acts 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 of 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.


CP at 116.


             The   jury    convicted    Morrissey       of   first degree   manslaughter.      Morrissey appeals his

conviction and the State cross appeals.6

                                                          ANALYSIS


 I. THE JURY INSTRUCTIONS MADE THE APPROPRIATE LEGAL STANDARD MANIFESTLY APPARENT


             Morrissey argues that the jury instructions did not make it manifestly apparent to the jury
                                                                                                         7
which of       two definitions      of "recklessness"        applied   to first degree   manslaughter.       According to

Morrissey, this instructional error allowed the jury to impermissibly convict him based on a finding

that Morrissey disregarded a substantial risk of "bodily harm" rather than a substantial risk of

    death."    We disagree.


                                    A. STANDARD OF REVIEW AND RULES OF LAW


             We    review   jury   instructions de      novo.   State v. Levy, 156 Wn.2d 709, 721, 132 P. 3d 1076

    2006).     Read   as    a whole,   the   court' s    instructions to the   jury "` must make the relevant legal

standard      manifestly     apparent   to the   average     juror."' State v. Kyllo, 166 Wn.2d 856, 864, 215. P. 3d




6 Because we affirm, we do not reach the State' s cross appeal.

7
     Morrissey repeatedly argues that the trial court' s instructions must make the relevant legal
standard "manifestly clear." Br. of Appellant at 7, 9. The appropriate standard, from State v.
Kyllo, 166 Wn.2d 856, 864, 215 P. 3d 177 ( 2009) ( quoting State v. Walden, 131 Wn.2d 469, 473,
932 P. 2d 1237 ( 1997)),            and other cases      is "` manifestly   apparent."'    State v. Marquez, 131 Wn.

App. 566, 575, 127 P. 3d 786 ( 2006).

                                                                 5
No. 45965 -5 -II



177 ( 2009) ( quoting State       v.   Walden, 131 Wn.2d 469, 473, 932 P. 2d 1237 ( 1997)). "                          Jury

instructions, taken in their entirety, must inform the jury that the State bears the burden of proving

every   essential element of a criminal offense               beyond    a reasonable     doubt."   State v. Pirtle, 127


Wn.2d 628, 656, 904 P. 2d 245 ( 1995).               Specifically, the " to -convict" instruction " must contain all

of the elements of the crime because it serves as a ` yardstick' by which the jury measures the

evidence    to determine    guilt or   innocence."           State v. Sibert, 168 Wn.2d 306, 311, 230 P. 3d 142


 2010) ( internal    quotation marks omitted) (          quoting State v. Smith, 131 Wn.2d 258, 263, 930 P.2d

917 ( 1997)).


          Here, the trial court instructed the jury with two different but legally correct definitions of

 recklessness."      Jury instruction 22 applied to first degree manslaughter and jury instruction 14

applied    to   second   degree   assault,     the    predicate     offense   for the   felony   murder    charge.     The


definitions     of "recklessness"   were      based    on    11 Washington Practice:         Washington Pattern Jury

Instructions:     Criminal 10. 03,     at   209 ( 3d   ed.   2008) .(WPIC).     Jury    instruction 22   read, "   A person


is reckless or acts recklessly when he or she knows of and disregards a substantial risk that a death

may occur and this disregard is a gross deviation from conduct that a reasonable person would

exercise   in the   same situation."    CP     at   114 ( emphasis    added).   Jury instruction    14   read, "   A person


is reckless or acts recklessly when he or she knows of and disregards a substantial risk that

substantial bodily harm may occur and this disregard is a gross deviation from conduct that a

reasonable person would exercise             in the   same situation."    CP at 106 ( emphasis added).


          In addition, the first degree manslaughter " to -convict" instruction read,

                    To convict the defendant of the crime of manslaughter in the first degree as
          charged in Count II, each of the following elements of the crime must be proved
          beyond a reasonable doubt:



                                                                R
No. 45965 -5 -II



                      1) That on or about August 27, 2013, the defendant engaged in reckless
           conduct;

                     2) That Talon Newman died as a result of defendant' s reckless acts; and
                     3) That any of these acts 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 of 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.


CP   at   116 ( emphasis   added).    The trial   court   instructed the jury that "[ a] person commits the crime


of assault in the second degree when he or she intentionally assaults another and thereby recklessly

inflicts   substantial   bodily   harm." CP at 109.


           The State points to the fact that the instructions pertaining to each charge were grouped

together. For example, the recklessness            instruction referring to " death," which applies to the first


degree     manslaughter      charge,    was   jury   instruction 22,    while.    the   manslaughter "   to convict"



instruction was jury instruction 24. Likewise, the recklessness instruction referring to " substantial

bodily     harm,"   which applies to the second degree assault charge, was jury instruction 14, while

the second degree assault definition was jury instruction 17, and the felony murder " to convict"

instruction was jury instruction 20. Because we find the reasoning in State v. Johnson, 180 Wn.2d

295, 325 P. 3d 135 ( 2014), persuasive, as we discuss below, we need not decide whether grouping

the instructions together is alone sufficient to make the legal standard manifestly apparent as the

State encourages us to do.


           Although we found no case directly on point, our Supreme Court' s decision in Johnson is

persuasive. There, a defendant charged with second degree assault challenged the court' s general.


jury   instruction    defining    recklessness.    Johnson, 180 Wn.2d        at   304- 05.   The trial court defined


 recklessness,"       stating that   a person acts   recklessly   when "`   he or she knows of and disregards a



                                                              7
No. 45965 -5 - II



substantial risk that a wrongful act may occur and this disregard is a gross deviation from conduct

that   a reasonable person would exercise                    in the   same situation."'     Johnson, 180 Wn.2d at 305;


WPIC 10. 03.           The trial court also gave a to -convict instruction based on WPIC 35. 03, at 456,


including    a requirement             that the   jury    find that Johnson "`   recklessly inflicted substantial bodily

harm."'    Johnson, 180 Wn.2d                at   305 (   emphasis omitted).     The to -convict instruction in Johnson


read,



                           To convict the defendant of the crime of assault in the second degree, as
          charged in count II, each of the following elements of the crime must be proved
          beyond a reasonable doubt:
                   1) That during the time intervening between May 4, 2009 and May 6, 2009,
          the defendant intentionally assaulted [ J. J.];
                  2) That the defendant thereby recklessly inflicted substantial bodily harm
          on [   J. J.];    and

                           3) That the acts occurred in the State of Washington."


180 Wn.2d at 304- 05 ( alterations in original).


          Johnson argued that the recklessness jury instruction was improper because the trial court

failed to remove the general words " a wrongful act" and insert the wrongful act associated with


second    degree       assault, " substantial       bodily harm," in its place. Johnson, 180 Wn.2d at 304- 05. He

argued that using the general " wrongful act" phrase lowered the State' s burden of proof because

it permitted the jury to convict him on the basis of any wrongful act. Johnson, 180 Wn.2d at 305.

Our Supreme Court disagreed and held that instructing the jury using the general " wrongful act"

phrase    was not           error "   because we review instructions as a whole, and here, the ` to convict'


instruction accurately            expressed       the   essential elements of   the   crime."   Johnson, 180 Wn.2d at 308.


Specifically, the court held that

           t] aken in their entirety, the instructions in this                   case   were    sufficient.   The " to
          convict"          instruction properly laid out the elements of the crime. It identified the
          wrongful act contemplated            by Johnson as " substantial bodily harm." Separately
No. 45965 -5 -II



          providing a generic definition of "reckless" did not relieve the State of its burden
          of proof. The " to convict" instructions are the primary " yardstick" the jury uses to
          measure culpability, and here they were accurate.

Johnson, 180 Wn.2d at 306.


          Like in Johnson, here, the to -convict instruction for first degree manslaughter is proper and

contained all essential elements of          that   offense.       The to -convict instruction, as in Johnson, was


based     on   the   relevant pattern   instruction   and   identified the   appropriate " wrongful act": "   Talon


Newman died."           CP at 116. Unlike Johnson, the trial court here gave two proper, charge -specific


instructions: one defining " recklessness" for first degree manslaughter and a different instruction

defining       recklessness   for   second   degree   assault.      These instructions permitted the jury, when

reading the jury instructions as a whole, to match the " wrongful act" identified in the to -convict

instruction for first degree         manslaughter—"      Talon Newman died"— with the " wrongful act" of


 death" contemplated by jury instruction 22.

           There is no reason to assume that the recklessness instructions would mislead the jurors


when      the to -convict     instruction correctly identified the          wrongful   act   at issue.   Reading the

instructions as a whole, the fact that the trial court identified the specific wrongful act at issue in


its instructions defining recklessness makes it more likely that the jurors matched the correct to -

convict instructions with the appropriate recklessness definitions.


           Morrissey also argues that because the court did not explicitly instruct the jurors regarding

which definition of recklessness they should apply to which crime, the appropriate standard was

not manifestly apparent. However, he provides no authority for the proposition that the trial court

has   a   duty   to specifically    make such an      instruction. His argument also ignores the requirement




                                                               0
No. 45965 -5 -II



that we read the jury instructions as a whole. See Johnson, 180 Wn.2d at 306; Kyllo, 166 Wn.2d

at 864. This argument is unpersuasive.


         We hold that, read as a whole, the trial court' s instructions made the relevant legal standard


manifestly apparent because the to -convict instruction in this case was proper, contained all the

essential   elements       of   the   crime     at    issue,    and    both the " to -convict"      instruction      and the


 recklessness" instruction specifically identified the " wrongful act" contemplated by a first degree

manslaughter charge.



           II. SUFFICIENT EVIDENCE SUPPORTS MORRISSEY' S MANSLAUGHTER CONVICTION


         Morrissey argues that no reasonable jury could have found that he knew of and disregarded

a substantial risk of death from the facts the Statd presented at trial to support his manslaughter


conviction. We disagree.


         We review a challenge to the sufficiency of the evidence to determine whether, when

  viewed in the light most favorable to the prosecution, [the evidence] permits any rational trier of

fact to find the   essential elements of            the   crime   beyond   a reasonable     doubt."'    State v. Andy, 182

Wn.2d 294, 303, 340 P. 3d 840 ( 2014) ( quoting                   State v. Thomas, 150 Wn.2d 821, 874, 83 P. 3d 970

 2004)).    A defendant who claims that insufficient evidence supports his conviction admits the


truth of the State' s evidence as well as any reasonable inferences that may be drawn from that

evidence.    State   v.   Salinas, 119 Wn.2d 192, 201, 829 P. 2d 1068 ( 1992). We defer to the trier of


fact' s determinations regarding witness credibility, conflicts in testimony, and the weight given to

the   evidence.    Thomas, 150 Wn.2d            at   874- 75.     When evaluating the sufficiency of the evidence,

 circumstantial evidence         is   not   to be    considered     any less   reliable   than direct   evidence."   State v.


Delmarter, 94 Wn.2d 634, 638, 618 P. 2d 99 ( 1980).



                                                                  10
No. 45965 -5 -II



         A   person    commits   first degree       manslaughter when    he "   recklessly causes the death of

another person."       RCW 9A.32. 060( 1)(    a).    A defendant acts " recklessly" when, for the purposes of

first degree manslaughter, he " knows of and disregards a substantial risk that [ death] may occur

and his or her disregard of such substantial risk is a gross deviation from conduct that a reasonable

person would exercise       in the   same situation."    RCW 9A.08. 010( 1)(     c);   WPIC 10. 03.


         Here, there is sufficient testimonial evidence from Gallo, Hodgson, and Dr. Harruff to


support Morrissey' s first degree manslaughter conviction. Gallo saw Newman fall " lifeless" and

 motionless"    to the    ground.     3 RP   at   594.   After Newman fell, Gallo saw a " gentleman come


around   to his left   side and get on   his knees" to    continue   hitting Newman.       3 RP at 594. Hodgson


testified that Newman was " not conscious" when he fell to the ground and identified Morrissey as

the person who moved next to Newman' s body and kept hitting him. 2 RP at 273.

         Dr. Harruff testified that Newman died as a result of damage to his spinal cord caused by

 blunt force injury" to the back of his head and neck. 1 RP at 152. He stated further that Newman' s

head and facial injuries were " consistent with" the State' s theory that Morrissey punched Newman

on the left side of his face, which caused the right side of the back of Newman' s head to strike the


pavement, fatally damaging his spinal cord. 1 RP ( Jan. 7. 2014) at 178

         Drawing all reasonable inferences in the State' s favor, we hold that sufficient evidence

exists from which a rational jury could find all the essential elements of first degree manslaughter

beyond a reasonable doubt.


                                       III. INCONSISTENT JURY VERDICTS


         Morrissey argues that the jury' s inconsistent verdicts violated his due process rights.

Specifically, he argues that the jury' s verdicts are inconsistent because the guilty verdict on first


                                                           11
No. 45965 -5 -II



degree manslaughter required a finding that he disregarded a substantial risk of death; but his

acquittal on felony murder with second degree assault as the predicate felony demonstrates that

the   jury    did   not   find that    Morrissey   disregarded   a substantial risk of   bodily    harm. We disagree


because in State          v.   Ng,   110 Wn.2d 32, 48, 750 P.2d 632 ( 1988), Washington adopted the United


States   v.   Powell, 469 U.S. 57, 64- 67, 105 S. Ct. 471, 83 L. Ed. 2d 461 ( 1984),                  rule holding that

    w]here the jury' s verdict is supported by sufficient evidence from which it could rationally find

the defendant guilty beyond a reasonable doubt, we will not reverse on grounds that the guilty

verdict   is inconsistent         with an acquittal on another count."      Because sufficient evidence supports


his first degree manslaughter conviction, as discussed above, we hold that Morrissey' s acquittal

on felony murder does not establish that an inconsistent jury verdict violated his due process rights.

                                      IV. MORRISSEY WAIVED HIS LFO ARGUMENT


          Morrissey argues for the first time on appeal that the trial court erred in requiring him to

pay certain costs and fees without first considering his present or future ability to pay and that this

violates      his right to      counsel.   Citing Fuller v. Oregon, 417 U.S. 40, 45- 46, 94 S. Ct. 2116, 40 L.

Ed. 2d 642 ( 1974),            Morrissey frames this as a constitutional issue in an attempt to assert a manifest

constitutional error that we may address for the first time on appeal. But the constitution does not

require findings as to the defendant' s ability to pay at the time of sentencing. State v. Blank, 131

Wn.2d 230, 239- 42, 930 P. 2d 1213 ( 1997).                Therefore,   under   RAP 2. 5(   a),   we decline to address


this argument.'




8
    Morrissey suggests that this approach also raises equal protection concerns because retained
counsel must advise a client in advance of fees and costs, while there is no such obligation for
appointed counsel. We decline to address this issue because Morrissey fails to present any relevant
argument or citation to legal authority. RAP 10. 3( a)( 6).
                                                             12
No. 45965 -5 -II



        Affirmed.


        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.




                                                      3HaANS(05N, C. J.
 I concur:




    Q4UIC
 MELNICK, J.          J




                                                 13
No. 45965 -5 -II



           BJORGEN, J. ( concurring) —   For the reasons set out in my dissent in State v. Lyle, _

P. 3d _,     No. 46101 -3 -II, 2015 WL 4156773 ( Wash. Ct.       App. July 10, 2015), I would reach Eric

Morrissey' s legal financial obligations' challenge, even though he did not raise it during

sentencing.. However, the majority in Lyle, a published decision, reached a contrary conclusion.

Lyle,        P. 3d _,   No. 46101- 34I, 2015 WL 4156773 ( Wash. Ct.       App. July   10, 2015). Unless


Lyle is overturned or its bases questioned by subsequent case law, I shall observe its result under

principles of stare decisis. Therefore, I concur in this decision with the reservation here


expressed.




                                                            i,




                                                   BJH . SEN.:




                                                     14
