  yrriTE
      IN CLERKS OFFICE
                                                               This opinion was
                                                                 filed for record
tUPRBE COURT,8TOE OF RMSHMeiOl
L OWE m 1 n Ml9|                                           ^^on DShW.<^i9
                                                              Susan L. Carlson
    -.^CMBFJUSIlCg         n
                                                            Supreme Court Clerk




     IN THE SUPREME COURT OF THE STATE OF WASHINGTON




STATE OF WASHINGTON,
                                              No. 96217-1
                         Petitioner,

        V.                                    En Banc


DEAN MASAO IMOKAWA,

                         Respondent.
                                              Filed        OCT ] 0 7m



        JOHNSON,J.—This case stems from a fatal car accident where Dean

Imokawa's truck collided with another vehicle during a lane change, propelling

him into oncoming traffic and causing a collision with another vehicle. The State

charged Imokawa with vehicular homicide and vehicular assault from the injuries

resulting from the collision. The trial court Judge denied Imokawa's request to

include a specific Jury instruction that the State must prove the absence of a

superseding intervening cause beyond a reasonable doubt. A Jury found Imokawa
State V. Imokawa, No. 96217-1



guilty of vehicular homicide and vehicular assault. The Court of Appeals reversed,
reasoning that the State has the burden to prove absence of a superseding

intervening cause, the jury was not sufficiently instructed on this burden, and the

error was not harmless. State v. Imokawa,4 Wn. App. 2d 545, 422 P.3d 502

(2018), review granted in part, 192 Wn.2d 1016,432 P.3d 111 (2019). The State

petitioned for review, arguing that the jury was properly instructed on the burden

of proof and that any error was harmless. We reverse the Court of Appeals. When

looking at the instructions as a whole, the jury was adequately instructed as to the

State's burden of proof on the issue of superseding intervening cause.

                      FACTS AND PROCEDURAL HISTORY


       On the morning of April 2, 2015,Imokawa was driving his truck on State

Route(SR)503, traveling north from Vancouver, Washington,toward Battle

Ground, Washington. While traveling in the left, northbound lane, Imokawa came

up behind a Land Rover driven by Nicholas Grier. Imokawa attempted to pass

Grier on the right, but he clipped the front of the Land Rover while changing back

from the right lane to the left lane. This collision caused Imokawa's truck to

swerve west, over the median, and sideways into oncoming, southbound traffic. A

southbound sport utility vehicle(SUV)hit Imokawa's truck; the driver ofthe SUV

sustained severe injuries, and her passenger died in the hospital the next day. Out
State V. Imokawa, No. 96217-1


of these events, the State charged Imokawa with vehicular homicide, vehicular

assault, and reckless driving.

       At trial there was conflicting testimony as to the facts immediately leading

up to the collision and how the initial collision between Imokawa and Grier
occurred. Grier testified that while he was driving northbound in the left lane, he

noticed the truck when Imokawa "flashed his headlights at [him] and came up very

close on [his] rear bumper." 2 Verbatim Report ofProceedings(VRP)at 357. He

testified that he was "uncomfortable" because Imokawa's truck was within a

couple feet of his Land Rover, so he "tapped [his] brakes and put [his] hand up" to

wave him off as they slowed down for a stoplight. 2 VRP at 358. After the

stoplight, Imokawa again came up close to Grier's bumper, backed off, and moved

into the right lane. Grier testified that as they began going down a hill on SR 503,

Imokawa accelerated past Grier, turned on his left-hand signal, and within seconds,

came over into the left-hand lane, striking the front of Grier's Land Rover. Grier

testified that he did not try to prevent Imokawa from making the lane change, he

did not see how it would be possible for Imokawa to make the lane change given

the space, and he did not speed up or react at all because of how quickly it

happened.

       Imokawa testified to a very different story. He stated that he first noticed

Grier's Land Rover when he saw a different truck pass Grier on the right. He then
State V. Imokawa, No. 96217-1



came up behind the Land Rover and turned on his headlights to get Grier's

attention and to let him know he wanted to pass, but Grier did not move over into

the right lane. He testified that as they came up to an intersection, he "backed off,"

but Grier remained in the left lane. 4 VRP at 659. Imokawa then came up right

behind the Land Rover again, and Grier "slammed on his brakes" and "brake

checked" Imokawa. 4 VRP at 659. Imokawa then backed off again and moved into

the right lane to pass Grier on the right. He testified that once he moved over, he

put on his left-hand signal, accelerated to pass Grier, and checked his mirrors to

make sure there was enough room to pass Grier. He claimed that when he began to

make the lane change, Grier sped up to cut him off and hit him, propelling him into

oncoming traffic.

       After testimony was completed, the parties discussed the jury instructions,

specifically focusing on the instructions for proximate cause and superseding

intervening cause. The main disagreement was whether the State bears the burden

to prove the absence of a superseding intervening cause beyond a reasonable doubt

or whether the defendant bears the burden of proving there was a superseding

intervening cause, and how the jury must be instructed on that issue.

      Imokawa proposed that Washington Pattern Jury Instructions: Criminal

90.08, which defines the interplay of proximate cause and superseding intervening

cause, be modified to include language that read.
State V. Imokawa, No. 96217-1



              The State has the burden of proving beyond a reasonable doubt
       both (1)that conduct by the defendant was a proximate cause and,(2)
       that the conduct of Nicholas Grier did not constitute a superseding
       cause of the collision which resulted in the injuries and the death that
       occurred in this case.


Compare Clerk's Papers(CP)at 29, with 11A WASHINGTON Practice:

Washington Pattern Jury Instructions: Criminal 90.08, at 278 (4th ed. 2016)

(WPIC). Imokawa also proposed adding "[tjhat. . . Nicholas Grier was not a

superseding cause ofthe injuries sustained by [the victim]" to 11A WPIC 90.02

(elements of vehicular homicide) and 11A WPIC 91.02(elements of vehicular

assault). CP at 30; see CP at 33. The trial court declined to give these instructions

and, instead, gave llA WPIC 90.02, 11A WPIC 91.02, and llA WPIC 90.08, as

well as 11A WPIC 90.07, defining proximate cause.

       The trial court also gave the standard instructions that included 11 WPIC

4.01, which defines reasonable doubt and informs the jury that the defendant is

presumed innocent, that the burden is on the State to prove every element of the

crimes beyond a reasonable doubt, and that the defendant has no burden to prove

reasonable doubt. See 11 WPIC 4.01, at 93 (4th ed. 2016).

       The jury found Imokawa guilty of vehicular homicide and vehicular assault,

both based on the prong of"operating [a] motor vehicle with disregard for the

safety of others." CP at 75, 77. The jury acquitted Imokawa of reckless driving.

Imokawa appealed, alleging that the State has the burden to prove absence of a
State V. Imokawa, No. 96217-1


superseding intervening cause, that the proof ofthis absence is an essential element
of the crimes of vehicular homicide and vehicular assault, that the trial court erred

because the jury was not adequately instructed on the burden and elements, and

that the error was not harmless.' The Court of Appeals agreed that the State had the

burden of proof, that the jury was not adequately instructed on that burden, and

that the error was not harmless, but it disagreed that absence of a superseding

intervening cause is an essential element ofthe crimes. Imokawa,4 Wn. App. 2d

545. The State petitioned this court's review on the issue of whether the jury was

adequately instructed that the State had the burden to prove the absence of a

superseding intervening cause and, if they were not, whether the error was

harmless.


                                       ANALYSIS


       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. Brown, 147 Wn.2d 330, 339, 58 P.3d 889(2002); see

also State v. Acosta, 101 Wn.2d 612, 615, 683 P.2d 1069 (1984). When a




      'Imokawa also challenged the sufficiency of the evidence, but the Court of Appeals
found the evidence sufficient. Imokawa,4 Wn. App. 2d at 561. Imokawa asked us to review this
issue, but we denied review.
State V. Imokawa, No. 96217-1



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 ofthe instructions as a whole. State v. Bennett, 161 Wn.2d 303, 307, 165

P.3d 1241 (2007). "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." State v. Tili, 139

Wn.2d 107, 126, 985 P.2d 365 (1999). When instructing the jury that the State has

the burden to disprove a defense,"a specific instruction is preferable, but failure to

provide one is not reversible per se so long as the instructions, taken as a whole,

make it clear that the State has the burden." Acosta, 101 Wn.2d at 621.

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

prove beyond a reasonable doubt the statutory elements ofthe crime. RCW

46.61.520 defines the elements of vehicular homicide:


      (1) When the death of any person ensues within three years as a
      proximate result of injury proximately caused by the driving of any
      vehicle by any person, the driver is guilty of vehicular homicide if the
      driver was operating a motor vehicle:

             (c) With disregard for the safety of others.

While RCW 46.61.522 defines the elements of vehicular assault:


      (1) A person is guilty of vehicular assault if he or she operates or
      drives any vehicle:
State V. Imokawa, No. 96217-1



             (c) With disregard for the safety of others and causes substantial
       bodily harm to another.

In the present case, the jury was instructed on these elements through 1 lA WPIC

90.02 and 1 lA WPIC 91.02, on the definition of proximate cause through 1 lA

WPIC 90.07, and on the interplay of proximate cause and superseding intervening

cause through 11A WPIC 90.08.

       Instruction 9, defining proximate cause for vehicular homicide, based on

llA WPIC 90.07, reads.

              To constitute vehicular homicide, there must be a causal
       connection between the death of a human being and the driving of a
       defendant so that the act done or omitted was a proximate cause of the
       resulting death.
              The term "proximate cause" means a cause which, in a direct
       sequence, unbroken by any new independent cause, produces the
       death, and without which the death would not have happened.
              There may be more than one proximate cause of a death.

CP at 56. Instruction 14 is almost identical, defining proximate cause for vehicular

assault, but it refers to substantial bodily harm to a person instead of death. CP at

61.


      Instruction 10, regarding superseding intervening cause for vehicular

homicide, based on 11A WPIC 90.08, reads.

             If you are satisfied beyond a reasonable doubt that the driving
      ofthe defendant was a proximate cause of the death, it is not a defense
      that the conduct or driving of the deceased or another may also have
      been a proximate cause of the death.
State V. Imokawa, No. 96217-1



              However, if a proximate cause of the death was a new
       independent intervening act of the deceased or another which the
       defendant, in the exercise of ordinary care, should not reasonably have
       anticipated as likely to happen, the defendant's act is superseded by
       the intervening cause and is not a proximate cause of the death. An
       intervening cause is an action that actively operates to produce harm
       to another after the defendant's act has been committed.
              However, if in the exercise of ordinary care, the defendant
       should reasonably have anticipated the intervening cause, that cause
       does not supersede the defendant's original act and the defendant's act
       is a proximate cause. It is not necessary that the sequence of events or
       the particular injury be foreseeable. It is only necessary that the death
       fall within the general field of danger which the defendant should
       have reasonably anticipated.

CP at 57. Instruction 15 is almost identical for superseding intervening cause and

vehicular assault, but it replaces death with substantial bodily harm. CP at 62.

       The arguments in this case parallel the arguments that have come before this

court in the context ofjury instructions and the State's burden to prove a defendant

did not act in self-defense. In State v. King,92 Wn.2d 541, 599 P.2d 522(1979),

we examined jury instructions regarding the burden of proof for self-defense in the

context of homicide. The instructions at issue indicated that to convict, the State

must prove '"[tjhat the killing, not being either excusable or justifiable, was done

with the intent to cause the death,"' and instructed the jury that "homicide is

justifiable when committed in self-defense." King, 92 Wn.2d at 544, 546 (emphasis

omitted). We held that although the jury was not explicitly instructed on the State's

burden to disprove self-defense, given that the instructions informed the jury that
State V. Imokawa,'No. 96217-1



the State had the burden to prove the homicide was not justified and that the

defendant was able to argue his theory of the case (that the State could not prove

beyond a reasonable doubt he did not act in self-defense), the instructions were

adequate.

       In Acosta, we again examined jury instructions and the burden of proof for

self-defense. In that case, we reiterated that the State has the burden to prove lack

of self-defense and that the jury must be instructed in a way that makes this burden

clear. The instructions at issue indicated self-defense was a complete defense to the

charged crime of assault. However, we reversed, holding that this alone was

inadequate because "[ujnlike . . . King . . . , the jury was not told in the 'to convict'

instruction that the force used must be unlawful, wrongful, or without justification

or excuse." Acosta, 101 Wn.2d at 623. Further, the self-defense instruction was

given after the description of the elements. We also noted that while in State v.

McCullum, 98 Wn.2d 484,656 P.2d 1064(1983)(plurality opinion), we indicated

a preference for a specific instruction indicating the State's burden of proof, it

would not be a per se reversible error as long as the instructions make it clear that

the State has the burden, such as the situation in King. Consistent with this

interpretation of McCullum, we engaged in an analysis of the jury instructions as a

whole.




                                           10
State V. Imokawa, No. 96217-1


       It follows from King and Acosta that when the jury is instructed on a defense

that necessarily negates an element listed in the to-convict instruction, a

definitional instruction adequately informs the jury of the State's burden of proof,

as the defense and the element are mutually exclusive. But, where the defense

negates an aspect of the crime not contained in the to-convict instruction, then a

definitional jury instruction is not sufficient. We use this same analysis to guide

our decision in the present case.

       In State v. W.R., 181 Wn.2d 757, 336 P.3d 1134(2014), we examined the

affirmative defense of consent in the context of second degree rape and a jury

instruction that specifically placed the burden to prove consent on the defendant.

We held that consent negates the essential element of forcible compulsion, placing

the burden on the State to prove beyond a reasonable doubt that the victim did not

consent when the defendant raises the defense of consent. Prior to W.R., the WPIC

on the defense of consent read in pertinent part,"The defendant has the burden of

proving that the [sexual intercourse][sexual contact] was consensual by a

preponderance of the evidence." 11 WPIC 18.25, at 288(3d ed. 2008)(brackets in

original). This instruction was problematic in W.R., as it explicitly shifted the

burden to the defendant to prove consent. Although the holding in W.R. indicates

this instruction is no longer proper, we also reasoned,"Because the focus is on

forcible compulsion,jury instructions need only require the State to prove the

                                          11
State V. Imokawa, No. 96217-1



elements of the crime. It is not necessary to add a new instruction on consent

simply because evidence ofconsent is produced." W.R., 181 Wn.2d at 767 n.3

(emphasis added). Thus, W.R. focuses on the instructional error that shifted the

burden to the defendant, which was improper.

       WPIC 18.25 has since been modified in light of W.R. to read,"Evidence of

consent may be taken into consideration in determining whether the defendant used

forcible compulsion to have [sexual intercourse][sexual contact]." 11 WPIC 18.25,

at 304 (4th ed. 2016)(brackets in original). Thus, W.R. teaches, and the new WPIC

recognizes, that so long as the burden is not shifted to the defendant in the

instructions, the jury need not be instructed as to the State's burden to prove

absence of a defense; it need only be specifically instructed on the essential

elements of the crime. In this case, the Court of Appeals correctly recognized that

under the statutes, absence of a superseding intervening cause is not an element of

vehicular homicide or vehicular assault. Although recognizing that absence of a

superseding intervening cause is not an element, the Court of Appeals still reversed

the conviction because the jury was not instructed on the burden of proof for the

nonelement absence of a superseding intervening cause. This is not consistent with

our jurisprudence.

       Imokawa argues that Acosta holds that when the jury is not explicitly

instructed that the State must prove absence of a defense but is instructed only on

                                          12
State V. Imokawa, No. 96217-1



the definition ofthe defense, then due process is violated. As stated above, in

Acosta, we found as a whole the instructions did not properly inform the jury of

the State's burden because self-defense negates unlawful force, and the jury was

not instructed in the to-convict instruction that the force must be unlawful. This is

different from the present case because the jury was instructed Imokawa's driving

must be a proximate cause of the injuries and death, and if there was a superseding

intervening cause, then Imokawa's driving was not a proximate cause of the

injuries and death.

       Imokawa also relies on State v. Souther, 100 Wn. App. 701, 998 P.2d 350

(2000), and State v. Meekins, 125 Wn. App. 390, 105 P.3d 420(2005), but neither

decided whether WPIC 90.08 properly instructs the jury on the law of superseding

intervening cause. In Souther, the Court of Appeals did not decide if the jury

instructions were improper but, instead, held any error would be harmless because

there was no evidence of a superseding intervening cause. 100 Wn. App. at 710-11.

Further, Meekins concerned contributory negligence and how the jury was

improperly instructed that contributory negligence was not a defense to vehicular

homicide and, thus, the defendant could not rely on the victim's actions as a

superseding intervening cause. 125 Wn. App. at 400-01. Meekins is unpersuasive

here as the jury was instructed that if there were a superseding intervening cause,

then the defendant's conduct was not the proximate cause.

                                          13
State V. Imokawa, No. 96217-1


       The State largely relies on Bennett, 161 Wn.2d 303, and the plain language

of the jury instructions. In Bennett, we found that even though the instruction at

issue on the burden of proof was problematic, it was constitutionally adequate.

However, we still recommended courts use 11 WPIC 4.01 (instead of the

instruction at issue) in the future. 161 Wn.2d at 317-18. Imokawa's jury was

instructed with the 11 WPIC 4.01 on the burden of proof and the presumption of

innocence.


       The State also argues that the jury instructions, when viewed as a whole,

explicitly stated that Imokawa had no burden of proof and that the State did have

the burden of proof. We agree with the State.

       The instructions given to the jury in this case are consistent with due process

and contain the statutory definitions and elements of vehicular homicide and

vehicular assault. The trial court did not need to explicitly instruct the jury that the

State has the burden to prove absence of superseding intervening cause because, as

instructed, proximate cause and presence of a superseding intervening cause are

mutually exclusive. This means proof of proximate cause beyond a reasonable

doubt necessarily proves absence of a superseding intervening cause. See State v.

Morgan, 123 Wn. App. 810, 818, 99 P.3d 411 (2004)(the burden to prove absence

of superseding intervening cause is "automatically assumed" by the State's burden

of proof for proximate, cause). As the above cases establish, in this case, the jury's

                                           14
State V. Imokawa,'Slo. 96217-1



verdict establishes that the State satisfied its burden to prove all elements of the

crime, including that the defendant proximately caused the accident and the

resulting injuries and death. Further, as instructed by 11A WPIC 90.07, the State

did not need to prove that the other driver's conduct was not a proximate cause, as

the jury was properly instructed there could be more than one proximate cause of

injury and death. The State needed to prove only that the other driver's conduct

was not a superseding intervening cause. The instructions as a whole are a proper

statement of the law, do not shift any burden to the defendant, and are not

misleading. Therefore, they are constitutionally adequate.

       Further, as instructed, Imokawa was fully able to argue his theory of the

case. Recently, in State v. Henderson, 192 Wn.2d 508, 430 P.3d 637(2018), we

examined the trial court's failure to instruct the jury on excusable homicide in a

prosecution for felony murder predicated on assault although it went directly to the

defendant's defense that he accidentally shot and killed the victim and could not be

convicted. After we examined the instructions in their entirety, we held that it was

not error for the trial court to refuse to give an instruction on excusable homicide

because the instructions "adequately told the jury the intent, conduct, and

necessary lack of accident it must find beyond a reasonable doubt to convict."

Henderson, 192 Wn.2d at 514. We reasoned that because Henderson was able to

argue his theory of the case and the jury was properly instructed that the assault

                                          15
State V. Imokawa,No. 96217-1


must be intentional, the jury would have to acquit ifthey believed Henderson acted

accidentally. Henderson, 192 Wn.2d at 515. The present case is very similar.

Defense counsel spent much of his closing emphasizing and arguing that the other

driver's conduct was a superseding intervening cause, and if the jury believed that

the other driver was a superseding intervening cause, then proximate cause would

not have been met.


       When, as is the case here, a jury is instructed as to the statutory elements of

a crime, that the State bears the burden of proving all elements beyond a

reasonable doubt, and that the defendant has no burden of proof, the instructions as

a whole are constitutionally adequate and do not violate due process.

                                   CONCLUSION


       We reverse the Court of Appeals. The jury was properly instructed as to the

State's burden to prove the statutory elements and as to the definitions of

proximate cause and superseding intervening cause, and the court gave no




                                          16
State V, Imokawa, No. 96217-1



instruction that would place any burden of proof on the defendant.




WE CONCUR:




                      7




                                        17
State V. Imokawa (Dean Masao)




                                        No. 96217-1



       MADSEN,J.(dissenting)—In a criminal trial, the State bears the burden of

proving a charged offense beyond a reasonable doubt. U.S. CONST, amend. XIV, § 1;

State V. W.R., 181 Wn.2d 757, 761-62, 336 P.3d 1134 (2014). This burden includes

proving the absence of an intervening superseding cause. See State v. Acosta, 101 Wn.2d

612,616, 683 P.2d 1069(1984). Jury instructions must unambiguously communicate

that this burden rests on the State. See id. at 621.


       Such unambiguous communication did not occur here. The jury instructions given

were unclear, discussing proximate and intervening causes solely in tenns of the

defendant. These instructions could have led a reasonable juror to think that it was the

defendant's burden to prove the existence of an intervening superseding cause. While the

jury instructions communicated the State's ultimate burden-—-to prove its case beyond a

reasonable doubt—^this remote goal did not cure the confusion created by unclear

instructions on intervening superseding cause. Because the instructions as a whole did

not sufficiently instruct the jury on the State's burden, the trial court erred. This error

was not harmless. Accordingly, I respectfully dissent.

                                         Discussion


       The State must prove '"beyond a reasonable doubt.. . every fact necessary to

constitute the crime with which [a defendant] is charged.'" W.R., 181 Wn.2d at 762
No. 96217-1
Madsen, J., dissenting


(alterations in original)(quoting In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L.

Ed. 2d 368 (1970)). However, the legislature does not violate due process when it

requires a defendant prove an affirmative defense when that defense "'excuse[s] conduct

that would otherwise be punishable.'" Smith v. United States, 568 U.S. 106, 110, 133 S.

Ct. 714, 184 L. Ed. 2d 570(2013)(quoting Z)/xon v. United States, 548 U.S. 1, 6, 126 S.

Ct. 2437, 165 L. Ed. 2d 299 (2006)). But when a defense negates an element of the

offense, it is not a true affirmative defense, and the legislature may not place the burden

of proving the defense on the defendant. W.R., 181 Wn.2d at 762. Thus, the State must

prove the absence of the defense to sufficiently meet its burden of proof. Acosta, 101

Wn.2dat616.


       When considering the sufficiency ofjury instructions, we look to whether the

'"instructions, taken as a whole, adequately informed the jury that [the] prosecution's

burden of proof beyond a reasonable doubt applied to defendant's [defense]."' Id. at 621

(emphasis omitted)(quoting United States v. Corrigan, 548 F.2d 879, 882(10th Cir.

1977)). While failing to provide a burden of proof instruction is not per se reversible

error, doing so would "avoid any confusion by the jury on burdens of proof." State v.

McCullum, 98 Wn.2d 484, 499, 656 P.2d 1064(1983)(plurality opinion). "The jury

should be informed in some unambiguous way that the State must prove absence of[a

superseding intervening cause] beyond a reasonable doubt." Acosta, 101 Wn.2d at 621.
No. 96217-1
Madsen, J., dissenting


       Here, the majority argues that because the proximate cause instructions

encompassed superseding intervening cause, as a whole, the jury was properly instructed

on the State's burden to prove the absence of a superseding intervening cause. I disagree.

       The instruction defining proximate causes states:

              To constitute vehicular homicide, there must be a causal connection
       between the death of a human being and the driving of a defendant so that
       the act done or omitted was a proximate cause of the resulting death.
              The term "proximate cause" means a cause which, in a direct
       sequence, unbroken by any new independent cause, produces the death, and
       without which the death would not have happened.
              There may be more than one proximate cause of a death.

Clerk's Papers(CP)at 56 (Instr. 9). The jury was then instructed:

              If you are satisfied beyond a reasonable doubt that the driving ofthe
       defendant was a proximate cause of the death, it is not a defense that the
       conduct or driving of the deceased or another may also have been a
       proximate cause of the death.
              However, if a proximate cause of the death was a new independent
       intervening act of the deceased or another which the defendant, in the
       exercise of ordinary care, should not reasonably have anticipated as likely
       to happen, the defendant's act is superseded by the intervening cause and is
       not a proximate cause of the death. An intervening cause is an action that
       actively operates to produce harm to another after the defendant's act has
       been committed.
              However, if in the exercise of ordinary care,     defendant should
       reasonably have anticipated the intervening cause, that cause does not
       supersede the defendant's original act and the defendant's act is a
       proximate cause. It is not necessary that the sequence of events or the
       particular injury be foreseeable.

Id. at 57 (Instr. 10)(emphasis added).

       These instructions discuss only the defendant's actions and the actions that do not

qualify as affirmative defenses ("it is not a defense that the conduct or driving of the
No. 96217-1
Madsen, J., dissenting


deceased or another may also have been a proximate eause of the death"). Id. The

instructions describe an intervening cause solely in terms of the defendant—not in terms

of the State's burden. In fact, neither the State nor its burden is mentioned. Id. at 56-57.

Instruction 10 specifically explains that an unforeseeable independent intervening act

supersedes the defendant's actions, thereby negating the defendant as a proximate eause.

Id. at 56-57. But a juror could easily read instruction 10 to mean that the defendant was

required to prove the existence of an intervening eause in order to show he or she was not

a proximate cause. This is particularly true ofthe final paragraph of the instruction,

which describes what does not constitute an adequate, affirmative showing by the

defendant to establish a superseding cause. Even if instruetion 10 stated that the State

must prove its case beyond a reasonable doubt, this would not clarify whether it rests on

the defendant to prove or the State to disprove the existence of an intervening eause

because the instruction treats superseding cause as a separate inquiry from proximate

cause yet fails to assign the burden on that inquiry.'

        The majority essentially relies on an implication: the mutually exelusive nature of

proximate cause and intervening cause implies the jury would recognize the State's

 burden of proving the absenee of an intervening cause. Majority at 14. The idea that

proving one element(proximate cause) necessarily disproves the opposite (superseding


'Neither instruction 3 nor the proximate cause instruction's use of"satisfied beyond a
reasonable doubt" language adequately informs the jury of the State's burden of proof.
Instruction 3 is the only express discussion of the State's burden of proof, CP at 50, and it asks
too much ofjurors to connect the phrase "beyond a reasonable doubt" to the State's burden
absent any context, especially considering the complexity of proximate and intervening causes.
No. 96217-1
Madsen, J., dissenting


intervening cause) does not make the State's burden of proof for the latter manifestly

apparent. See State v. Walden, 131 Wn.2d 469, 473, 932 P.2d 1237(1997)("[rjead as a

whole, the jury instructions must make the relevant legal standard manifestly apparent to

the average juror"). In faet, it makes that area of law more eonvoluted and leads to

greater eonfiision to the average reasonable juror.

       Our goal in providing jury instructions is to permit the parties to argue their

respective theories of the ease, to avoid misleading the jury, and to properly inform the

trier of fact on the applicable law when read as a whole. See Havens v. C&D Plastics,

Inc., 124 Wn.2d 158, 165, 876 P.2d 435 (1994). Instructing a jury on the standard of

proof with respect to only proximate cause runs eounter to those underlying policies of

jury instructions. Resorting to an inference from an instruction that a jury may not

necessarily reach is insufficient for purposes of due process.

       The majority dismisses W.R. and Acosta as distinct from the instant case, but these

cases actually lay the groundwork for whether specific jury instructions are necessary to

properly inform the jury of applicable law. For example, in W.R., at issue were jury

instructions that allocated the burden of proof of a defense to the defendant to prove a

sexual encounter was consensual. 181 Wn.2d at 761. We held that doing so violated due

process because the State has the burden to prove the crime eharged. Id. at 763. "[T]he

State [must] prove 'beyond a reasonable doubt. . . every fact necessary to constitute the

erime with whieh [a defendant] is charged.'" Id. at 762(quoting Winship, 397 U.S. at

364). The majority argues that our holding in W.R. means that "so long as the burden is
No. 96217-1
Madsen, J., dissenting


not shifted to the defendant in the instructions, the jury need not be instructed as to the

State's burden to prove absence of a defense; it need only be specifically instructed on

the essential elements of the crime." Majority at 12. But this is not what JV.R. stands for.

Rather, it stands for the proposition that when a defense negates an element, rather than

acts as an affirmative defense, the burden of proof rests with the State. See JV.R., 181

Wn.2dat765.


       In Acosta, we held the jury instructions for self-defense were inadequate because

when read as a whole, the "to convict" instruction did not inform the jury that the force

used must be "unlawful, wrongful, or without justification or excuse." 101 Wn.2d at 623.

While we prefer specific instructions on crucial areas of the law, such as the burden of

proof for a negating defense, we recognized in Acosta that failing to provide that

instruction is not per se reversible error. Id. at 621. However, we also said that if the

instructions as a whole do not adequately address that which a specific instruction would,

then due process is violated. See id. at 621-22.

       For example, in State v. Fischer, the Court of Appeals considered whether a

"necessity" instruction should have been presented to the jury for a second degree assault

charge. 23 Wn. App. 756, 598 P.2d 742(1979). That instruction read,"If at the time of

the alleged assault defendant as a reasonably and ordinarily prudent man believed he

and/or another were in danger of great bodily harm, he would have the right to resort to

self-defense and his conduct is to be judged by the conditions appearing to him at that

time, not by the conditions as they might appear when the threat of harm no longer
No. 96217-1
Madsen, J., dissenting


exists." Id. at 758 (emphasis omitted). The trial court rejected that instruction and

instead issued the following:

              It is a defense to a charge of Second Degree Assault that the force
       used was lawful as defined in this instruction.
              The use of force upon or toward the person of another is lawful
       when used by someone lawfully aiding a person about to be injured in
       preventing or attempting to prevent an offense against the person, and when
       the force is not more than is necessary.
              Necessary means that no reasonably effective alternative to the use
       offorce appeared to exist and that the amount of force used was reasonable
       to effect the lawful purpose intended.

Id. at 758-59 (emphasis omitted). The trial court refused the proposed instruction

"because [the judge] was satisfied that the 'subjective' common-law standard was

'inherent' in the instruction given." Id. at 759. But the instruction is sufficient "only if it

makes the subjective standard manifestly apparent to the average juror." Id. "Therefore,

the court's instruction can stand only if it included the essential element that the person

using the force need only reasonably believe, in light of all the facts and cireumstanees

known to him, that he or another person is in danger." Id. Because the jury instruction

presented did not adequately relay this subjective standard to the jury, the Court of

Appeals reversed.

       Similarly, "[jjury instructions on self-defense must more than adequately convey

the law." Walden, 131 Wn.2d at 473 (citing State v. LeFaber, 128 Wn.2d 896, 900, 913

P.2d 369 (1996), overruled in part by State v. O'Hara, 167 Wn.2d 91, 217 P.3d 756

(2009)). When "[rjead as a whole, the jury instructions must make the relevant legal

standard manifestly apparent to the average juror." Id. "'A jury instruction misstating


                                              7
No. 96217-1
Madsen, J., dissenting


the law of self-defense amounts to an error of constitutional magnitude and is presumed

prejudicial.'" Id. (quoting           128 Wn.2d at 900). The trial court issued the

following jury instruction regarding self-defense:

               One has the right to use force only to the extent of what appears to
       be the apparent imminent danger at the time. However, when there is no
       reasonable ground for the person attacked or apparently under attack to
       believe that his person is in imminent danger of death or great bodily harm,
       and it appears to him that only an ordinary battery is all that is intended, he
       has no right to repel a threatened assault by the use of a deadly weapon in a
       deadly manner.
              Great bodily injury as used in this instruction means injury of a
       graver and more serious nature than an ordinary battery with a fist or
       pounding with the hand; it is an injury of such nature as to produce severe
       pain, suffering and injury.

Id. at 472. We took issue with the definition of great bodily injury, as it suggested an

objective standard rather than a subjective one. Specifically, we noted,"By defining

[great personal injury] to exclude ordinary batteries, a reasonable juror could read

instruction 18 to prohibit consideration of the defendant's subjective impressions of all

the facts and circumstance, i.e., whether the defendant reasonably believed the battery at

issue would result in great personal injury." Id. at 477 (alteration in original). We

reversed the trial court's decision because the definition was a "misstatement of the law."


Id. at 478-79.


       Because the instructions provided in this case could be read to shift the burden of

proving an intervening cause to the defendant, they are misleading. State v. Tili, 139

Wn.2d 107, 126, 985 P.2d 365 (1999)(citing State v. Theroff, 95 Wn.2d 385, 389, 622
No. 96217-1
Madsen, J., dissenting


P.2d 1240 (1980)). Taken as a whole, the instructions did not unambiguously

communicate the State's burden. Acosta, 101 Wn.2d at 621.

       Moreover, I would hold that it was not harmless error to provide improper jury

instructions. State v. Brown, 147 Wn.2d 330, 339, 58 P.3d 889 (2002). By failing to

specifically instruct the jury on the State's burden of proof, there is a reasonable

possibility that the jury failed to weigh the credibility of the defendant and the SUV

(sport utility vehicle) driver's conflicting testimonies using the appropriate legal standard.

Indeed, superseding intervening cause was a critical issue in this case, and both sides

presented conflicting testimony on the matter. Failing to provide a jury instruction on

superseding intervening cause taints an objective view of the matter and leaves one to

question whether the jury properly considered all the evidence before it.

                                         Conclusion


       An implication extrapolated from jury instructions does not adequately inform a

trier of fact of the applicable law. Where taken as a whole, there is a reasonable

possibility the jury may not have properly scrutinized the weight of the evidence as a

result of the omission of a jury instruction, a specific jury instruction is necessary. In this

case, the specific instruction on proximate cause, as well as the jury instructions

generally, did not adequately inform the jury of the State's burden to prove absence of a

superseding intervening cause, thereby violating due process. This was reversible error

that was not harmless. I would hold a specific instruction was necessary and would

affirm the Court of Appeals. I respectfully dissent.
No. 96217-1
Madsen, J., dissenting




                              o4z

                                    Ji




                         10
