                                                                                      MI:R 28 ZOB 





            IN THE COURT OF APPEALS STATE OF WASHINGTON 

                             DIVISION III 

STATE OF WASHINGTON,                            )
                                                )   No.   29980-5-111
                      Respondent,               )
                                                )
       v.                                       )
                                                )   ORDER GRANTING
CHRISTOPHER MARTIN OWENS,                       )   MOTION FOR
                                                )   RECONSIDERATION
                      Appellant.                )   AND AMENDING OPINION
                                                )
                                                )

       THE COURT has considered appellants' motion for reconsideration, and is of the

opinion the motion should be granted. Therefore,

       IT IS ORDERED the motion for reconsideration of this court's decision of February 14,

2013, is granted.

       IT IS ALSO ORDERED the court's opinion of February 14,2013, is amended as

follows:

       On page 6, add the following new paragraph after the heading "A. Ocycontin Evidence":

                In Mr. Owens' interview with Detective Darnell, Mr. Owens repeatedly
       told the detective about Mr. Tyler's oxycontin use. Mr. Owens believed that Mr.
       Tyler continued to use oxycontin because Ms. Brown had found some oxycontin
       pills in Mr. Tyler's things. He explained that he was afraid of Mr. Tyler because
       oxycontin made him more ill-tempered and Mr. Owens' oxycontin-addicted
No. 29980-5-II1
State v. Owens


         cousin threatened to kill his grandparents. He also said that he believed that
         oxycontin "destroys the soul." Exhibit 66 at 6.

         On page 6, delete the last two sentences of the second paragraph which state:

         Mr. Owens argues, here on appeal, that he repeatedly told Detective Darnell about
         Mr. Tyler's oxycontin abuse. Br. of Appellant at 18. It may be in Exhibits 65 and
         66, which is apparently a recording of the interview, but that exhibit is not part of
         the record on appeal and so we do not know.

         On page 14, delete the entire first paragraph and insert the following paragraph in its
place:

                  Mr. Owens relies on Wanrow to argue that the court here severely
         restricted what perceptions Mr. Owens was allowed to share with the jury. He
         argues that courts frequently allow a defendant's perception of the decedent's
         intoxication into evidence. And so the court should have allowed similar
         testimony about oxycontin. He also argues that any prejudice from this error is
         manifest because his first trial included evidence of oxycontin use and resulted in
         a hung jury. He continues that the evidence, if admitted, would have shown that
         he feared Mr. Tyler because Mr. Tyler became more ill-tempered when on
         oxycontin, Mr. Owens' oxycontin-addicted cousin threatened to kill his
         grandparents, and Mr. Owens believed that oxycontin makes the user soulless.

         DATED:       March 28, 2013

         FOR THE COURT:




                                                   rlVIN idKORSMO
                                                   Chief Judge




                                                  2

                                                                  FILED

                                                             FEB 14,2013

                                                     in the Office of the Clerk of Court 

                                                   W A State Court of Appeals, Division iii 



            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                               DIVISION THREE 


STATE OF WASHINGTON,                           )          No. 29980-5-III
                                               )
                             Respondent,       )
                                               )
       v.                                      )
                                               )          UNPUBLISHED OPINION
CHRISTOPHER MARTIN OWENS,                      )
                                               )
                             Appellant.        )

       SWEENEY, J. - Christopher Owens shot and killed Richard Tyler with a gun that

had two barrels, a .410 shotgun barrel and a .22 rifle barreL He first used the shotgun

barrel to shoot Mr. Tyler in the face and, after Mr. Tyler fell, he used the .22 barrel to

shoot Mr. Tyler in the back of the head. Mr. Owens presented evidence and argued that

he killed Mr. Tyler to defend himself and his mother from harm, and specifically, to

defend his mother from a threatened sexual assault. He presented evidence that Mr. Tyler

was a cruel bully who treated his mother badly and said things that Mr. Owens and his

mother interpreted as an immediate threat to inflict injury, including sexual assault. A

jury listened to four days of testimony, the court's instructions, and argument of counsel.

It rejected Mr. Owens defense of self-defense and found him guilty of first degree
No. 29980-5-III
State v. Owens


murder. We conclude that the jury was properly instructed, the court did not abuse its

discretion in its various rulings on evidence, and there was no misconduct on the part of

the State that would require reversal. We, therefore, affirm the conviction.

                                         FACTS

       Richard Tyler and Christopher Owens' mother, Kellie Brown, had been in a

romantic relationship since 2001. They began living together in Ms. Brown's home in

late 2002. Mr. Tyler had always been a bully, but his behavior escalated in 2008-he

pushed Ms. Brown down a flight of stairs. The couple broke up later that year.

       In December 2008, they had an argument over the phone and Ms. Brown got a

domestic violence protection order. Mr. Tyler had been out of town for months, but Ms.

Brown knew that he would fly back on December 23. Ms. Brown delivered Mr. Tyler's

dog to Mr. Tyler's relatives and made arrangements to transfer Mr. Tyler's property to

them. Ms. Brown and Mr. Owens packed Mr. Tyler's possessions into his panel truck,

which was at Ms. Brown's house. Ms. Brown talked to police about serving Mr. Tyler

with the protection order when he arrived at the airport. She also asked Mr. Owens to be

at her house on December 23 for protection.




                                              2

No. 29980-5-II1
State v. Owens


       On December 23,2008, Ms. Brown and Mr. Tyler spoke on the phone. Among

other things, he said that he was coming to get "what's his." II Report of Proceedings ,

(RP) at 674. Ms. Brown told him that she had a protection order and that he was

unwelcome at her house. Later, Mr. Tyler's father and sister picked up Mr. Tyler at the

airport. They went to the Department of Licensing so Mr. Tyler could renew his license

tabs, but he did not have his vehicle registration. So, they drove Mr. Tyler to Ms.

Brown's house to get the vehicle registration.

       Mr. Tyler entered Ms. Brown's garage through an overhead door. He then entered

the house through a door between the garage and the basement. Ms. Brown dialed 911

and reported that Mr. Tyler was breaking into her house. As Mr. Tyler walked up the

stairs leading to a landing in this split level house, Mr. Owens shot him in the face using

the .410 shotgun barrel of a gun equipped with two barrels. After Mr. Tyler fell, Mr.

Owens then shot him again in the back of the head, this time using the .22 rifle barrel. At

some point, Ms. Brown yelled to Mr. Owens, "don't shoot him." II RP at 630. Police

arrived shortly after and saw Mr. Tyler's dead body lying face down on the stairs

connecting the basement and foyer. Mr. Owens admitted that he shot Mr. Tyler.




       1 I Report of Proceedings is the report of proceedings for the 2009 trial. II Report
of Proceedings is the report of proceedings for the 2011 trial.

                                             3
No. 29980-5-II1
State v. Owens


       Detective Darin Darnell interviewed Mr. Owens later that day. Mr. Owens said

that Mr. Tyler came to the house and began shaking the front door. He then heard noise

from the garage door, which he believed his mother had jammed shut somehow. Mr.

Owens walked halfway down the stairs between the main floor living room and the foyer.

He warned Mr. Tyler not to come up the stairs and that he had a gun. Mr. Owens did not

know whether Mr. Tyler heard the warning or saw the gun. Mr. Tyler did not respond

and continued up the stairs between the basement and the foyer. Mr. Owens then shot

him from his perch on the upper stairs. Mr. Owens had never seen Mr. Tyler hurt his

mother. He told police he did not know whether Mr. Tyler would have assaulted Ms.

Brown and that he did not know what Mr. Tyler would do. He felt threatened because

Mr. Tyler had been told there was a restraining order but came into the house and did not

stop. Mr. Owens also told the police that you do not pull a gun on someone unless you

are going to use it.

       The State charged Mr. Owens with first degree murder or, in the alternative, 


second degree murder. The case was tried in 2009 and Mr. Owens argued that he acted 


. in self-defense. The 2009 trial resulted in a hung jury. The case was again tried in 2011 


and Mr. Owens again presented evidence and argued that he acted to defend himself and 


his mother.



                                              4

No. 29980-5-III
State v. Owens


1. SELF-DEFENSE EVIDENCE

       Mr. Owens testified that he saw changes in Mr. Tyler around 2008. Mr. Tyler

became unpredictable and would "blow up." II RP at 665. Mr. Owens testified that he

never saw Mr. Tyler assault Ms. Brown, but he did witness Mr. Tyler bully and

intimidate her. He also believed that Mr. Tyler had pushed Ms. Brown down the front

steps of her home. And he was generally fearful that Mr. Tyler might sexually assault

Ms. Brown. When Mr. Tyler got into Ms. Brown's house on December 23, Mr. Owens

was afraid for himself and his mother.

      There were also statements in Mr. Owens' interview with Detective Darnell that

tended to support Mr. Owens' theory of self-defense. Mr. Owens explained that he

brought his gun to Ms. Brown's house because he did not want to get into a "physical

fight" with Mr. Tyler. II RP at 418. He said that Mr. Tyler is "big" and is six inches

taller than him. II RP at 418, 423. He repeatedly indicated that he did not want Mr.

Tyler to beat up him or his mother.

       Ms. Brown also testified on Mr. Owens' behalf. She testified generallv that she
                                                                      ~       ~




feared Mr. Tyler, Mr. Tyler had threatened her in front of Mr. Owens, Mr. Tyler

assaulted her in February 2008, and that he threatened to sexually assault her in

December 2008.


                                             5

No. 29980-5-II1
State v. Owens


       A. Oxycontin Evidence

       1. At First Trial

       At the first trial, the State moved in limine to prevent any testimony about Mr.

Tyler's use of oxycontin. The State argued that the evidence was irrelevant because there

was no evidence to show that oxycontin tended to make Mr. Tyler, or any other user of

oxycontin, violent.

       Defense counsel argued that Mr. Tyler had been a bully throughout his

relationship with Ms. Brown, but he began using oxycontin and it further "sour[ ed] his

disposition." I RP at 44. Counsel also said that Mr. Owens was afraid because Mr.

Owens had a cousin who had threatened to kill his grandparents while on oxycontin. Mr.

Owens also believed that Mr. Tyler continued to use oxycontin because Ms. Brown told

Mr. Owens that she found some oxycontin pills in Mr. Tyler's things. Mr. Owens argues,

here on appeal, that he repeatedly told   Dete~tive   Darnell about Mr. Tyler's oxycontin

abuse. Br. of Appellant at 18. It may be in Exhibits 65 and 66, which is apparently a

recording of the interview, but that exhibit is not part of the record on appeal and so we

do not know.




                                               6

 No. 29980~5~III
 State v. Owens


        The court concluded that the evidence of oxycontin use was relevant, but "ifs too

. speculative and too prejudicial at this time and not probative enough" and it granted the

 State's motion in limine. I RP at 168.

        The State then played a recording of Detective Darnell's interview of Mr. Owens.

 The State spliced the recording to exclude Mr. Owens' statements about oxycontin. The

 recording indicated that Mr. Owens brought a gun to his mother's house because Mr.

 Tyler was big and Mr. Owens wanted to protect his mother.

        After the State played the recording, defense counsel asked the court to reconsider

 its ruling excluding the oxycontin evidence. Counsel argued that the way the State

 spliced the recording was misleading. Rather than the recording indicating that Mr.

 Owens was afraid of Mr. Tyler because he was big and used oxycontin, which Mr.

 Owens asserts is what he told Detective Darnell, the spliced recording gave the

 impression that the only reason he feared Mr. Tyler was Mr. Tyler's size. I RP at 272.

 The court granted the motion for reconsideration and allowed evidence of the oxycontin

 use. I RP at 277.

        2. At Second Trial

        In the second trial, the court ruled that it would exclude evidence that Mr. Tyler 


 used oxycontin. Mr. Owens again moved for reconsideration and argued that the 



                                              7

No. 29980-5-III
State v. Owens


evidence was relevant to the reasonableness of Mr. Owens' actions. Specifically, counsel

wanted the jury to know that:

   •	   Mr. Owens' cousin threatened to kill his grandparents
   •	   Mr. Owens' cousin was addicted to oxvcontin
                                              '"
   •	   Oxycontin use "was an issue" with Mr. Tyler
   •	   Mr. Owens was aware that Ms. Brown and Mr. Tyler argued about Mr. Tyler's
        oxycontin use
   • 	 .Mr. Owens noticed changes in Mr. Tyler similar to the changes that occurred in
        his cousin

II RP at 264-65. The court refused. It explained, "I don't really recall how or why it

came into the last trial. The Court I think granted the motion in limine to prevent it from

coming in and I think the Court would stick with that particular motion because I really

haven't seen anything that makes it relevant." II RP at 265. Mr. Owens moved for

reconsideration after the State again "opened the door," but the court denied the motion.

II RP at 454.

        B. 	 Boot Print Evidence

        The State moved in limine to prohibit Ms. Brown from testifying that some white

scuff marks on the door between the garage and the basement was a boot print. The State

argued that the marks were not there on December 23.2008. Defense counsel responded

that the evidence was admissible because it matched the boots Mr. Tyler was wearing

when he was shot. He argued that the boots were in evidence and testimony would sho\\'


                                             8

No. 29980-5-III
State v. Owens


that witnesses outdoors at the time of the shooting heard three bangs, but Mr. Owens

fired his gun only twice. And Ms. Brown had no knowledge that the door had been

kicked before December 23,2008. Counsel argued that Ms. Brown did not put the marks

on the door, and she photographed and told law enforcement about the marks. Ms.

Brown, however, could not testify as to the last time she saw the door prior to

December 23,2008.

       The court concluded that the boot print evidence had not been properly preserved

and refused to admit it. The court explained that nobody could testify about whether the

print existed prior to the incident, photographs of the print were taken long after

December 23, 2008, and the door was in Ms. Brown's possession the entire time.

       Nonetheless. the bottom half of the door was admitted and Detective Dan

Dieringer testified that the door was in its December 23, 2008, condition, except for the

fact that there was a mark on the door that was not there on December 23,2008. And Mr.

Owens and Ms. Brown testified that they heard a very loud banging sound when Mr.

Tyler entered the door between the garage and the basement. Two witnesses outdoors

during the shooting also testified that they heard three loud bangs.




                                             9

No. 29980-5-III
State v. Owens


II. JURY INSTRUCTIONS

       During the voir dire process, the court instructed the prospective jurors that "[a]

reasonable doubt is one for which a reason can be given." II RP at 8. But, when the

court instructed the jury after all the evidence had been submitted, it instead instructed

the jurors that a reasonable doubt is "one for which a reason exists."} Clerk's Papers

(CP) at 59. The written instructions read by the court to the jury before their

deliberations went with the jury into the jury room.

       The court also instructed the jury on the elements of first degree murder and self-

defense. By instruction 5, the court instructed that a person commits murder "when, with

a premeditated intent to cause the death of another person, he or she causes the death of

such person or of a third person, unless the killing is justifiable." CP at 60. Instruction 6

spelled out the elements the State had to prove for the jury to convict Mr. Owens offirst

degree murder. By instruction 12, the court instructed the jury that it had a duty to find

Mr. Owens not guilty if the State failed to prove an absence of self-defense. CP at 67.

III. 	 STATE'S CLOSING ARGUMENT

       The prosecutor argued that Mr. Owens did not act in self-defense. He argued that

Mr. Owens' actions were based on Mr. Tyler's bullying, but that shooting and killing Mr.

      211 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS:
CRIMINAL (WPIC) 4.01 (3d ed. 2008).

                                             10 

No. 29980-5-II1
State v. Owens


Tyler was not an appropriate response. He argued that Mr. Tyler did not "have a hand in

this" because, from Mr. Tyler's point of view, he was merely entering his own home. He

pointed out that Mr. Tyler was not a stranger breaking into the house.

       The prosecutor then related a personal anecdote. His dogs' barked and woke him

and his wife. He sat up in bed and saw a figure standing in the hallway. The prosecutor

grabbed a gun and charged at the figure. The figure turned out to be the prosecutor's son.

The prosecutor explained that his son had an emergency at his house and did not call

because he did not want to wake them. The prosecutor concluded the story by saying

"my son had lived at that house. He didn't need to call. He didn't need to tell me."

II RP at 783. From this, the prosecutor argued that Mr. Tyler was not a stranger to Ms.

Brown. He argued that Mr. Tyler had not beaten up Ms. Brown. And he argued that

while there were allegations of domestic violence, Mr. Tyler had merely gone into the

house to retrieve some personal property.

       The jury rejected Mr. Owens defense of self-defense and found him gUilty of first

degree murder.




                                            11 

No. 29980-5-III
State v. Owens


                                       DISCUSSION

1. RULINGS ON EVIDENCE

       Mr. Owens assigns error to the court's decision to exclude evidence of Mr. Tyler's

oxycontin use and the boot print on Ms. Brown's basement door. He argues that those

evidentiary rulings impaired his ability to defend himself against these charges and

specifically his ability to present evidence on, and argue, self-defense.

       The right to compulsory process guarantees defendants the right to present a

defense and their version of the facts. Washington v. Texas, 388 U.S. 14. 17-19,87 S. Ct.

1920, 18 L. Ed. 2d 1019 (1967). A defendant may claim self-defense when he committed

the homicide to defend himself or a person in his company "when there is reasonable

ground to apprehend a design on the part of the person slain to commit a felony or to do

some great personal injury to the slayer or to any such person, and there is imminent

danger of such design being accomplished." RCW 9A.16.050(1). Evidence of self-

defense "must be assessed from the standpoint of the reasonably prudent person, knowing

all the defendant knows and seeing all the defendant sees." State v. Janes, 121 Wn.2d

220,238, 850 P.2d 495 (1993). And ajury is entitled to '''view the conduct of the

[deceased] with all its pertinent sidelights as the appellant was warranted in viewing it."·

ld. (alteration in original) (quoting State v. Wanrow, 88 Wn.2d 221, 235-36.559 P.2d 548


                                             12 

No. 29980-5-II1
State v. Owens


(1977)). The jury is entitled to consider the facts and circumstances known to the

defendant, "even those substantially predating th~ killing." ld.

       However, the right to present evidence, including evidence of self-defense, is not

unlimited. State v. Thomas, 150 Wn.2d 821, 857, 83 PJd 970 (2004). The standard of

review we apply to a court's decision to exclude evidence is well established-it is the

abuse of discretion standard of review. State v. Pavlik, 165 Wn. App. 645, 650-51, 268

PJd 986 (2011) (reviewing whether the court abused its discretion by refusing to admit

evidence of self-defense when the defendant argued that the evidentiary ruling violated

his right to present a defense), review denied, 174 Wn.2d 1009 (2012). Ultimately, Mr.

Owens contends that the court's evidentiary rulings amounted to a denial of his

constitutional right to present a defense. Br. of Appellant at 28-32. He argues from this

that our review is de novo. Reply Br. of Appellant at 8-12. Certainly, at some point, a

court may so restrict a defendant's opportunity to present evidence to support a theory of

the case that courts of review will step in and conclude that he was denied the right to a

meaningful defense. See State v. Jones, 168 Wn.2d 713, 721, 230 P.3d 576 (2010). But

that most certainly is not the case here. So instead we pass on whether the trial court had

tenable grounds or reasons for its rulings. Pavlik, 165 Wn. App. at 651.




                                             13 

No. 29980-5-III
State v. Owens


       A. Oxycontin Evidence

       Mr. Owens argues that he told police he feared Mr. Tyler because, among other

things, Mr. Tyler used oxycontin. He argues that he saw that oxycontin made his cousin

threaten to kill his grandparents, and Mr. Owens believed that oxycontin made one

soulless. He relies on Wanrow to argue that the court here severely restricted what

perceptions Mr. Owens was allowed to share with the jury. He argues that courts

frequently allow a defendant's perception of the decedent's intoxication into evidence.

And so the court should have allowed similar testimony about oxycontin. He also argues

that any prejudice from this error is manifest because his first trial included evidence of

oxycontin use and resulted in a hung jury. He continues that the evidence, if admitted,

would have shown that Mr. Owens knew that Mr. Tyler used oxycontin and that he

became more ill-tempered when on oxycontin. It would have shown that Mr. Owens also

feared Mr. Tyler because of the oxycontin use because he knew that his oxycontin­

addicted cousin threatened to kill his grandparents.

       Evidence is relevant if it has any tendency to make the existence of any material

fact more or less probable. ER 401: State v. Lord, 161 Wn.2d 276,294,165 P.3d 1251

(20D7). Evidence ofMr. Tyler's use of oxycontin may well have been relevant to Mr.

Owens' subjective perception ofMr. Tyler. But that does not end our inquiry.


                                             14
No. 29980-5-111
State v. Owens


       Even relevant evidence may be inadmissible if the judge concludes that the danger

of unfair prejudice outweighs any probative value. ER 403; State v. Rivers, 129 Wn.2d

697,710,921 P.2d 495 (1996). Whether the danger of unfair prejudice outweighs the

probative value depends on whether the evidence is likely to stimulate an emotional,

rather than a rational, response. State v. Powell, 126 Wn.2d 244,264,893 P.2d 615

(1995). Whether the probative value of evidence outweighs its unfair prejudice, depends

on the availability "of the other means of proof and other factors." Id.

       Mr. Owens and Ms. Brown testified at some' length that Mr. Tyler was aggressive,

intimidating, a bully, and that Mr. Tyler pushed Ms. Brown down a flight of stairs and

threatened to sexually assault her. Evidence of Mr. Tyler'S oxycontin use might have

offered some explanation of why Mr. Tyler was ill-tempered and violent. But Mr.

Owens' fear was the important point and one that he was allowed to fully develop. The

fact that Mr. Tyler's anger was fueled by oxycontin would have added little to this

discussion. And there was no showing that Mr. Tyler actually used oxycontin on the day

of the shooting or that Mr. Owens believed that Mr. Tyler had used the drug on the day of

the shooting. Indeed, a toxicology report showed that Mr. Tyler hadn't used the drug.

The oxycontin evidence then had little probative value.




                                             15 

No. 29980-5-II1
State v. Owens


       And the court could have easily concluded that what little probative value the

evidence had was substantially outweighed by the risk of prejudice. The court could

have viewed evidence of Mr. Tyler's drug use as inherently prejudicial. See State v.

Stockton, 91 Wn. App. 35,41,955 P.2d 805 (1998) (stating that evidence of drug use was

"highly prejudicial"). The court was also correct to exclude evidence that Mr. Owens'

oxycontin-addicted cousin threatened to kill his grandparents. That is the exact kind of

emotionally charged evidence that ER 403 seeks to avoid. The evidence touches upon

Mr. Owens' perception of Mr. Tyler, but it also would have invited the jury to conclude

that Mr. Tyler was violent because people using oxycontin are violent.

      The court correctly maintained its initial ruling from the first trial. II RP at 265.

That ruling reflected the thoughtful balancing that cases require. I RP at 168.

      B. Evidence a/the Boot Print

      Mr. Owens also argues that the court should have allowed evidence of a boot print

on the basement door, again, to show that Mr. Owens' fear of Mr. Tyler was reasonable.

Br. of Appellant at 36-42. He argues that the court's concerns over the chain of custody

should have gone to the weight of this evidence rather than the admissibility.

       A judge determines whether evidence is admissible; the jury determines what

weight to attach to that evidence. ER 104(a), (e); State v. Roche, 114 Wn. App. 424,436,


                                             16 

No. 29980-5-III
State v. Owens


59 PJd 682 (2002). To admit evidence, the evidence must be authenticated or identified

"to support a finding that the matter in question is what its proponent claims." ER

901(a).

          The evidence, here the door, must be in substantially the same condition as when

the crime was committed. State v. Campbell, 103 Wn.2d 1,21,691 P.2d 929 (l984).

The chain of custody should show that it is '''improbable that the original item has either

been ... contaminated or tampered with.'" Roche, 114 Wn. App. at 436 (emphasis

omitted) (quoting United States v. Cardenas, 864 F.2d "1528, 1531 (lOth Cir. 1989)).

Factors the court may consider are the nature ofthe item, the circumstances of its

preservation and custody, and the likelihood of contamination or tampering. Campbell,

103 Wn.2d at 21. The court here considered these factors.

       Ms. Brown identified the boot print. But the circumstances of its preservation and

the potential for contamination were significant. The boot print was on the door for at

least eight months after the shooting. Ms. Brown had no knowledge whether or not the

door had been kicked before December 23,2008. She could not testify as to the last time

she saw the door prior to December 23, 2008. The court excluded testimony about the

boot print because nobody could testify about whether the print existed prior to the

incident. It also excluded the testimony because photographs of the print were taken long


                                              17 

No. 29980-5-III
State v. Owens


after December 23,2008, and the door was in Ms. Brown's possession the entire time.

These are tenable grounds. The court's refusal to admit evidence of the boot print was a

discretionary decision and we conclude there was no abuse of discretion.

       In another argument related to this door, Mr. Owens contends that prohibiting

counsel from arguing that Mr. Tyler kicked the basement door down infringed on his

right to counsel. Br. of Appellant at 1,39-40. Closing argument is an important element

of the Sixth Amendment right to counsel because it is the defendant's last chance to

persuade the jury that there is a reasonable doubt. Herring v. New York, 422 U.S. 853,

862,95 S. Ct. 2550,45 L. Ed. 2d 593 (1975). Counsel has wide latitude to argue his

theory of the case, but his argument "must be restricted to the facts in evidence and the

applicable law." State v. Perez-Cervantes, 141 Wn.2d 468,474,6 P.3d 1160 (2000).

       We cannot conclude, however, that the absence of the word "kick" from defense

counsers closing argument violated Mr. Owens' Sixth Amendment right to counsel. Mr.

Owens does not cite to nor do we find any ruling prohibiting counsel from arguing that

Mr. Tyler kicked down the door. Defense counsel did not specifically argue that Mr.

Tyler "kicked" down the door, but he did argue that Mr. Tyler somehow breached a "70,

80, 90 pound[]" door and that the sound of the door slamming against the wall made a




                                             18 

No. 29980-5-III
State v. Owens


loud banging noise. II RP at 833-34. Defense counsel was allowed to argue Mr. Owens'

theory of the case.

II.   JURY INSTRUCTIONS


        Mr. Owens next contends that the court's instructions to the jury were flawed.

Specifically, the court (1) gave an incomplete instruction on self-defense-one that did

not include a "commit-a-felony" alternative, (2) incorrectly defined reasonable doubt for

the venire at the outset of the trial, (3) omitted self-defense as an element of first degree

murder in the elements instruction, and (4) incorrectly instructed the jury that it had a

duty to convict if the State proved its case beyond a reasonable doubt. We review the

sufficiency of jury instructions de novo. State v. Barnes, 153 Wn.2d 378,382,103 P.3d

1219 (2005).

        The issues raised by Mr. Owens here on appeal were not raised at trial. We

generally refuse to review issues not preserved for appeal. RAP 2.5; State v. 0 'Hara,

167 Wn.2d 91, 97-98, 217 P.3d 756 (2009). We will, however, review manifest

constitutional errors for the first time on appeal. RAP 2.5(a); O'Hara, 167 Wn.2d at 98.

But this approach also becomes a problem here on appeal. Judge Marshall Forrest made

an important observation that criminal law is so largely constitutionalized that any

instructional error arguably implicates constitutional due process. State v. Lynn, 67 Wn.


                                              19 

No. 29980-5-III
State v. Owens


App. 339, 342-43, 835 P.2d 251 (1992). Among other problems this presents is the

temptation and the opportunity for competent counsel to not raise an issue in the trial

court: an issue that may have little or no impact on a jury but may ultimately provide grist

for the appellate mill. Id. And so Judge Forrest noted the important limitation imposed

by RAP 2.5 is that the constitutional error be "manifest." Id. at 343. '" [MJanifest'

means unmistakable, evident or indisputable, as distinct from obscure, hidden or

concealed." Id. at 345. A manifest error must have "practical and identifiable

consequences in the trial of the case." Id. With these introductory remarks, we turn to

the specific objections Mr. Owens raises here on appeal.

       A. Self-Defense Instruction

       Mr. Owens argues that the court erred by not instructing that "[h]omicide is

justifiable when committed in the lawful defense of the slayer, the slayer's parent, or any

other person in the slayer'S presence or company when ... the slayer reasonably believed

that the person slain intended to commit a felony or to inflict death or great personal

injury." The instruction used here omitted "to commit a felony." CP at 67. Mr. Owens

then urges that this violated his right to present a defense. He argues that this prevented

the jury from considering whether Mr. Owens' reasonable belief that Mr. Tyler would

sexually assault Ms. Brown justified the homicide. Br. of Appellant at 43-44. And he


                                             20 

No. 29980-5-II1
State v. Owens


argues that this is so because the jury might not consider a sexual assault a "great

personal injury."

      A self-defense instruction is not necessarily flawed because it omits the language

"to commit a felony." See State v. Brenner, 53 Wn. App. 367, 376-77, 768 P.2d 509

(1989), overruled on other grounds by State v. Wentz, 149 Wn.2d 342,350,68 P.3d 282

(2003); WPIC 16.02 (bracketing "to commit a felony" and "to inflict death or great

personal injury" and stating "[u]se bracketed material as applicable"). But even

assuming that it was an error, it certainly was not manifest constitutional error. See RAP

2.5. The defense could have framed Mr. Tyler's intent as one to "commit a felony," but

it chose not to. On appeal,Mr. Owens emphasizes Mr. Tyler's threat of sexually

assaUlting Ms. Brown. But Mr. Owens' theory at trial was that Mr. Owens shot Mr.

Tyler because he feared "great personal injury" in the form of a beating. II RP at 691,

693-94, 816.

       Moreover, the court defined "great personal injury" as "an injury that the slayer

reasonably believed, in light of all the facts and circumstances known at the time, would

produce severe pain and suffering if it were inflicted upon ... another person." CP at 68.

This definition allowed the jury to consider Mr. Owens' fear that his mother might be




                                             21 

No. 29980-5-II1
State v. Owens


sexually assaulted. Omitting "to commit a felony" from the self-defense instruction does

                                                          .
not for us amount to manifest constitutional error bv any standard.
                                                    .
       B. Reasonable Doubt Instruction

       Mr. Owens next argues that the court erred by instructing potential jurors that "[a]

reasonable doubt is one for which a reason can be given" rather than "one for which a

reason exists." II RP at 8 (emphasis added). The proper instruction is worded "one for

which a reason exists." State v.   Bennett~   161 Wn.2d 303, 317,165 PJd 1241 (2007).

The Supreme Court explained that this definition is the best, but that other definitions are

not necessarily unconstitutional. Id. at 316-18. In State v. Castillo, Division One of this

court reversed a conviction because the trial court failed    to   follow Bennett's directive.

150 Wn. App. 466,473,208 P.3d 1201 (2009).

       The court's instruction here must be put into context. Mr. Owens did not object to

the instruction. See id. at 467. More significantly, the court used the precise instruction

directed by the state Supreme Court when it instructed the jury, charged with deciding the

case, that reasonable doubt is "one for which a reason exists." CP at 59. The jury had the

correct statement of the law during deliberations. See Bennett, 161 Wn.2d at 317. Even

were we to assume the initial instruction to the potential jurors was flawed, we cannot

conclude that incorrectly instructing the venire "had practical and identifiable


                                                22 

No. 29980-5-III
State v. Owens


consequences." Lynn, 67 Wn. App. at 345. This was again not a manifest constitutional

error.

         C. Elements Instruction

         Mr. Owens next contends that the court's instruction to the jury on the elements of

this crime is flawed because it fails to list an absence of self-defense as an element of first

degree murder. Br. of Appellant at 57-62. He argues that the instruction then omits an

essential element of the charge and leaves the jury with the impression that it may convict

even if the State has not proved a lack of self-defense.

         Omitting an element from an elements instruction is a manifest constitutional error

because that instruction is the "yardstick" by which the jury measures guilt and

innocence. Statev. Mills, 154 Wn.2d L 6, 109 PJd415 (2005). We must then review

the assignment of error despite Mr. Owens' failure to object in the trial court. Id. at 6.

         The State has the burden to prove every element of the crime charged. State v.

Byrd, 125 Wn.2d 707,713-14,887 P.2d 396 (1995). And the elements instruction must

generally contain all of the elements required for a conviction. Mills, 154 Wn.2d at 7.

The elements of first degree murder are (1) intent to cause the death of another and (2)

actually causing the death. RCW 9A.32.030(l )(a). The court instructed the jury that




                                              23 

No. 29980-5-II1
State v. Owens


               [t]o convict the defendant of the crime of Murder in the First Degree,
       each of the following elements of the crime must be proved beyond a
       reasonable doubt:
               (1) That on or about December 23, 2008, the defendant acted with
       intent to cause the death of Richard Lynn Tyler;
               (2) That the intent to cause the death was premeditated;
               (3) That Richard Lynn Tyler died as a result of the defendant's acts;
       and
               (4) 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 guiltv.
                  ~     -'

               On the other hand, if, after weighing all of the evidence, you have a
       reasonable doubt as to anyone of these elements, then it will be your duty
       to return a verdict of not guilty.

CP at 61. The court's instruction on the necessary elements was virtually identical to

WPIC 26.04.

       The State must prove, of course, the lack of self-defense beyond a reasonable

doubt when a defendant makes out a prima facie case of self-defense. State v. Walden,

131 Wn.2d 469,473-74,932 P.2d 1237 (1997). Mr. Owens argues that, because he

properly raised self-defense, and presented evidence of self-defense, a lack of self-

defense should have been listed among the elements of first degree murder. But the

Supreme Court has already rejected this argument. State v. Hoffman, 116 Wn.2d 51, 804

P .2d 577 (1991). In Hoffman, the court concluded that an instruction that did not list an




                                            24 

No. 29980-5-III
State v. Owens


absence of self-defense as an element does not relieve the State of its burden or prevent

the defendant from arguing its case. ld. at 109.

       Mr. Owens invites us to revisit Hoffman because the law has changed since

Hoffman was decided. Reply Br. of Appellant at 16-21. Mr. Owens cites to State v.

Mills,3 State v. Valentine,4 and State v. Janes. 5 But none of these cases touch upon the

precise issue in Hoffman. Hoffman is still good law. And Hoffman would dictate that the

elements instruction here was adequate.

       Additionally, a lack of self-defense is also already part of first degree murder's

elements. Generally, there are two ways that an absence of self-defense may be an

element of the charged crime: (1) the statute reflects legislative intent to treat an absence

of self-defense as an element, or (2) proof of self-defense negates an element of the

crime. State v. Acosta, 101 Wn.2d 612,615,683 P.2d 1069 (1984), abrogated on other


       3 Mills, 154 Wn.2d at 6-15 (holding that the "to convict" instruction on felony
harassment was inadequate when the "threat to kill" element was listed in a special
verdict instruction instead of the "to convict" instruction).

      4 State v. Valentine, 132 Wn.2d 1,935 P.2d 1294 (1997) (holding that a person
cannot assert self-defense in an arrest where that person is faced only with a loss of
freedom and is not resisting an attempt to inflict injury).

       5Janes, ] 2] Wn.2d at 242 (concluding that certain evidence was not "too far
removed" from the crime and court should have considered it from the defendant's point
of view before denying his motion for a self-defense instruction).

                                             25 

No. 29980-5-III
State v. Owens


grounds by State v. Camara, 113 Wn.2d 63 L 781 P.2d 483 (1989). Self-defense has

been described as "'another element of the offense which the State must prove beyond a

reasonable doubt.'" State v. Jordan, 158 Wn. App. 297, 301,241 PJd 464 (2010)

(quoting State v. McCullum, 98 Wn.2d 484,493-94,656 P.2d 1064 (1983)). But that

notion follows from an earlier version of the criminal code; one that characterized

homicide as murder "unless it was 'excusable or justifiable. ", Jordan, 158 Wn. App. at

301; see   LAWS OF   1909, ch. 249, §§ 140,141, 143.

       Under the revised code, self-defense negates the intent elements of the crime

charged. McCullum, 98 Wn.2d at 495; see Acosta, 101 Wn.2d at 616; Jordan, 158 Wn.

App. at 301. The mens rea element for first degree murder is intent. See RCW

9AJ2.030(1 )(a). Intent is acting "with the objective or purpose to accomplish a result

which constitutes a crime." RCW 9A.08.01O( 1)(a) (emphasis added). Self-defense is

"[i]n the lawful defense of the slayer, or his ... parent; .., when there is reasonable

ground to apprehend a design on the part of the person slain to commit a felony or to do

some great personal injury to the slayer or to any such person, and there is imminent

danger of such design being accomplished." RCW 9A.16.050(l) (emphasis added).

Self-defense negates first degree murder's intent element because

       [a] person acting in self-defense cannot be acting intentionally as that term
       is defined in RCW 9A.08.0 1O( 1)(a). There can be no intent to kill within

                                             26 

No. 29980-5-III
State v. Owens


       the first degree murder statute unless a defendant kills "unlawfully," i.e.,
       "with the objective or purpose to accomplish a result which constitutes a
       crime." ... Since self-defense is explicitly made a "lawful" act under
       Washington law, ... it negates the element of "unlawfulness" contained
       within Washington's statutory definition of criminal intent.

McCullum, 98 Wn.2d at 495 (citations omitted). The absence of self-defense is then part

and parcel of this intent element. So there was no need to also list it as an additional

element because self-defense negates the mens rea element of the crime charged. Id. ~ see

Acosta, 101 Wn.2d at 616; Jordan, 158 Wn. App. at 301.

       The State was required to prove premeditation for the jury to find Mr. Owens

guilty of first degree murder. And, certainly, if the State convinces the jury that the

killing here was premeditated murder, it has proved the absence of self-defense.

Compare RCW 9A.32.030(l)(a) (listing "premeditated intent" as an element of first

degree murder) andRCW 9A.16.050.

       The instruction here neither omitted an element nor misled the jury. Self-defense

negates murder's intent element, a lack of self-defense was then embedded into the intent

element. The jury could not have found that intent and self-defense. The statement "[i]f

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," was not

misleading.


                                             27 

No. 29980-5-111
State v. Owens


       The instruction here neither omitted an element nor misled the jury.

      D. Duty to Return a Verdict ofGuilty

       Mr. Owens also assigns error to the court's direction in the elements instructions

that "[i]fyou 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.,. CP at 61. The

language of this instruction is from \\-'PIC 26.04. Mr. Owens argues that, under

Washington law, juries never have a duty to return a verdict of guilty and that the

instruction violates article I, sections 21 and 22 of the Washington State Constitution.

The rationale that underlies Mr. Owens' challenge has been rejected in two recent cases.

State v. Meggyesy, 90 Wn. App. 693, 958 P.2d 319 (1998), abrogated on other grounds

by State v. Recuenco, 154 Wn.2d 156,110 P.3d 188 (2005); State v. Bonisisio, 92 Wn.

App. 783, 794, 964 P.2d 1222 (1998). We agree with their reasoning.

III. PROSECUTORIAL MISCONDUCT

       Mr. Owens next contends that the State's closing argument amounted to

prosecutorial misconduct. The alleged misconduct occurred when the prosecutor told a

personal story:

               My wife and I were sleeping .... We have a couple dogs .... All of
       a sudden we heard them baric ... [A]s we were laying there, they started
       that kind of yipping and then it became more heated, the barking and the
       yapping. And. you knmv, I was still half asleep, my wife is still half asleep,

                                             28
No. 29980-5-III
State v. Owens


      but that woke me up enough that ... I sat up and in our bedroom~ the
      hallway as you look down, I could see a figure standing there. Okay?
      Scared the hell out of my wife.
             And just outside of our bedroom there's a hallway, there's a landing,
      and down that landing, well actually we have the same landing. Down the
      landing, the first flight, it goes down to ... down the stairs. . .. And this
      person was standing there and he actually was faced down the landing.
      Okay? Had a hood on. Couldn't see his face .... Was wearing a jacket. I
      bolted up. Now, I have a firearm as well. ... I responded and I
      aggressively went in the direction of the guy. And for that split second I
      didn't know who he was. But just a moment later, I realized who it was. It
      was my son. He had an emergency at his house. He didn't want to wake
      us, but he walked in without telling us he was coming over.

II RP at 782-83. The prosecutor then went on to argue that Mr. Tyler was not a stranger

to Ms. Brown. He argued that Mr. Tyler had not beaten Ms. Brown. And he argued that,

although there were allegations of domestic violence, Mr. Tyler had merely gone into the

house to retrieve some personal property.

       Mr. Owens did not object to these comments at triaL where the judge could have

addressed his complaints and done something about it, if warranted. Because his

objection was lodged for the first time here on appeal, he has an increased burden. State

v. Emery, 174 Wn.2d 741, 761-62, 278 P.3d 653 (2012). He must show that "(1) 'no

curative instruction would have obviated any prejudicial effect on the jury' and (2) the

misconduct resulted in prejudice that 'had a substantial likelihood of affecting the jury




                                             29 

No. 29980-5-II1
State v. Owens


verdict. '" ld. at 761 (quoting State v. Thorgerson, 172 Wn.2d 438, 455, 258 P.3d 43

(2011)). We do not think he has shown either.

       Appeals to passion and prejudice are improper. State v. Gregory, 158 Wn.2d 759,

810,147 P.3d 1201 (2006). So is urging a jury to decide based on facts outside the

record. State v. Pierce, 169 Wn. App. 533,553,280 P.3d 1158, review denied, 175

Wn.2d 1025 (2012). But every improper comment is not necessarily prejudicial. See

State v. Elmore, 139 Wn.2d 250, 292, 985 P.2d 289 (1999). Certain comments, of

course, are more likely to be prejudicial. Emery, 174 Wn.2d at 763 (citing State v.

Belgarde, 110 Wn.2d 504, 506-07, 755 P.2d 174 (1988) (calling a Native American

group that the defendant was affiliated with was'" a deadly group of madmen'" and

'"butchers''' and told the jury to remember Wounded Knee); State v. Reed, 102 Wn.2d

140, 143-44,684 P.2d 699 (1984) (calling the defendant a "liar" and discounting defense

witnesses' credibility because they are from out of town and drive expensive cars»; see

also Pierce, 169 Wn. App. at 556 (focusing on the shocking nature of the crimes and

asking the jurors to imagine themselves being murdered in their homes); State v. Claflin,

38 Wn. App. 847, 851, 690 P.2d 1186 (1984) (reading emotional poem about what it

feels like to be raped). Other comments "simply do not rise to such level." Elmore, 139

Wn.2d at 292.


                                            30
No. 29980-5-III
State v. Owens


       We review a prosecutor's statements in the context of the entire argument, the

issues of the case, the evidence addressed in the argument, and the jury instructions.

State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997). When so viewed, we are

unable to conclude that the prosecutor's statements here rise to the level of those in

Belgarde, Reed, Pierce, and Claflin. Those statements had no purpose other than to

appeal to the jury's passion. The comments here certainly involved facts outside the

record, but they are not the type calculated to stir the jury to convict based on passion

rather than the law and evidence. The argument here addressed Mr. Owens defense, self-

defense, by suggesting that shooting an unarmed man who previously cohabited with the

owner of the house was probably ill considered and an unreasonable reaction to events.

The point of the story, a point supported by the State's evidence, was that Mr. Tyler was

not a stranger to this house. He had lived there and, so far as he knew, his stuff was still

in the house.

       Clearly, the story was not part of the evidence and the prosecutor never suggested

that it was. The court also gave the standard cautionary instruction that "[t]he lawyers'

remarks, statements, and arguments are intended to help you understand the evidence and

apply the law. It is important, however. for you to remember that the lawyers' statements

are not evidence. The evidence is the testimony and the exhibits." CP at 55. The


                                             31
No. 29980-5-II1
State v. Owens


prosecutor's argument appears to be the kind of analogies or comparisons that lawyers

frequently use in arguments to the jury. The jury was free to reject that comparison as

farfetched. a poor example, or ultimately not helpfuL

      But. even if we were to agree with Mr. Owens that the comments were an

improper appeal to the emotions, he must still show that they were "so flagrant and ill

intentioned that no curative instruction would have obviated the prejudice it engendered."

State v. Munguia, 107 Wn. App. 328, 336; 26 P.3d 1017 (2001) (citing Hoffman, 116

Wn.2d at 93). We are not convinced that a timely objection and a curative instruction

would not have adequately addressed Mr. Owens' concerns.

       We affirm the conviction.

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

Washington Appellate Reports but it will be filed for public record pursuant to

RCW 2.06.040.




WE CONCUR:




K rmo, C.J.


                                            32
