          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON


THE STATE OF WASHINGTON,                   )       No. 73928-0-1
                                           )
                      Respondent,          )
                                           )       DIVISION ONE
                      v.                   )
                                           )
WILLIAM RALPH SMITH,                       )       UNPUBLISHED OPINION
                                           )
                     Appellant.            )       FILED: May 22, 2017
                                           )

       MANN, J. — Jeremy McClellan died of a stab wound after a fight with William

Smith. Smith was charged with murder in the second degree. A jury acquitted Smith of

the murder charge but found him guilty of first degree manslaughter. Smith appeals his

conviction and argues that the trial court erred by instructing the jury that justifiable

homicide was a defense to the charge of murder in the second degree but not a

defense to the charge of manslaughter. Smith argues also that at sentencing, the court

improperly calculated his offender score by including an out-of-state conviction without

sufficient evidence supporting the conviction. We disagree that the evidence of the out-

of-state conviction was insufficient. However, because the trial court erred in failing to

instruct the jury that justifiable homicide is a defense to manslaughter, we reverse

Smith's conviction for manslaughter and remand for a new trial.
No. 73928-0-1/2


                                                   1

       Smith lived with his girlfriend, Chena Fisher, in a trailer on Ron White's property.

White was in the process of trying to evict Smith because Smith failed to make rent

payments.

       On March 21, 2015, several of White's acquaintances visited him at his trailer,

which was down the hill from Smith's trailer. The visitors included Jeremy McClellan.

At some point Smith also visited White's trailer where he met McClellan for the first time.

Eventually, Smith returned to his trailer.

       Several times during the night, McClellan showed up at Smith's trailer, knocking

loudly on the door and shouting. Smith ignored McClellan initially, then opened the

door and told McClellan he was spending time with Fisher. The final time, McClellan

shouted at Smith that he wanted a cigarette. Smith went outside to talk to McClellan,

followed shortly thereafter by Fisher with her dog. Fisher testified that she saw

McClellan holding an axe, and saw him "flinch" toward Smith. She did not see

McClellan raise the axe, but he moved quickly toward Smith in a threatening manner.

She heard McClellan tell Smith in a threatening tone,"the difference between you and 1

is 1 get my money." Fisher briefly left the scene to chase her dog. Fisher next saw both

Smith and McClellan wrestling. She then saw McClellan fall to the ground and let out a

loud growling noise before running toward White's trailer.

       After hearing screams coming from White's trailer, Smith told Fisher to go to the

neighbors and call 911. Fisher explained to the 911 operator that a person who had

come to their trailer wielding an axe was now critically wounded. Emergency medical

workers arrived, but McClellan died at the scene.

                                             -2-
No. 73928-0-1/3


        The medical examiner determined that McClellan died from a stab wound to the

neck. The wound could have been caused by either a knife or a broken bottle. There

were also wounds on his back that were caused by a knife. Although Smith did not

mention having used a knife to defend himself, one of his kitchen knives was later

discovered to have McClellan's blood on it.

        Smith was charged with murder in the second degree.

        At trial, Smith requested the jury instructions include an instruction on the lesser-

included offenses of first and second degree manslaughter. Smith proposed using the

definition for first and second degree manslaughter set out in WPIC 28.01 and WPIC

28.05, including the explanation that justifiable homicide was a defense to both. 11

WASHINGTON PRACTICE PATTERN JURY INSTRUCTIONS: CRIMINAL 28.01, 28.05(4th ed.

2016)(WPIC).1 Smith also requested a jury instruction, based on WPIC 16.02, defining

the defense of justifiable homicide for both murder and manslaughter.2

        As the trial progressed, the parties and court discussed and agreed on jury

instructions that included the proposed WPIC 28.01 and 28.01 definitions for first and

second degree manslaughter (including the defense for justification), and the proposed

WPIC 16.02 definition for justifiable homicide (including both murder and manslaughter).

The parties and court also agreed to modify the "to convict" instructions for second


          1 WPIC 28.01 provides:"A person commits the crime of manslaughter in the first degree when he
or she recklessly causes the death of another person [unless the killing is [excusable][or][justifiable]].
The "notes on use" state that the bracketed materials should be used "if the defense of excusable or
justifiable homicide is in issue."
          WPIC 28.05 provides:"A person commits the crime of manslaughter in the second degree when,
with criminal negligence, he or she causes the death of another person [unless the killing is [excusable]
[or][justifiable]]." The notes on use state that the bracketed materials should be used "if the defense of
excusable or justifiable homicide is in issue."
         2 WPIC 16.02 provides, in part: "It is a defense to a charge of[murder][manslaughter] that the
homicide was justifiable as defined in this instruction."
                                                 -3-
No. 73928-0-1/4


degree murder and first and second degree manslaughter to include language requiring

the jury to find that the death was not justifiable.

       Then, late in the process, the State requested that the instructions be changed,

arguing, "justification is not something that should be considered with manslaughter."

The State maintained the court needed "to make some modifications to make it so that

manslaughter . . . does not allow justification." The State agreed that Smith had

presented sufficient evidence to support a defense of justification, and the instruction

was therefore warranted for the second degree murder charge. The State claimed,

however, that a justification defense was legally unavailable for manslaughter.

       The court was hesitant to make any changes, and pointed out that the State's

late request was unacceptable. Defense counsel said, "I'm not totally in agreement"

following up saying "I [mean] intellectually it makes sense. Where I get hung up is if the

jury feels that Smith's actions are justifiable, they should not proceed in any way shape

or form to the manslaughter `to convict instruction" and "I frankly don't see what the

detriment is to the State with the instructions as they exist." After continued discussions

about the change, defense counsel again raised concerns with the change:

      [DEFENSE COUNSEL]: Okay. And I will note, Your Honor, that WPIC
      16.02 specifically says "it is a defense to charge of'murder'
      'manslaughter.'
      THE COURT: Yeah. But that's not what the case law says.
      [DEFENSE COUNSEL]: Well, I mean the case law, State v. Hughes is a
      1986 case. They haven't changed the WPIC in 39 years?
      THE COURT: That wouldn't surprise me because Bergeson is a 92 case.
      [DEFENSE COUNSEL]: Okay.

       The trial court eventually agreed with the State and removed the justification

element from the manslaughter "to convict" instruction, and removed manslaughter from


                                            -4-
No. 73928-0-1/5


the justifiable homicide instruction. After the court and the prosecutor determined which

changes would be made, the court asked for defense counsel's response:

       [DEFENSE COUNSEL]: Well, I agree that's what the Court is ruling, that
       issue, that instruction. I'm still hung up on the fact that that's not what the
       WPIC says.
       THE COURT: I know. But 1 think—I'm convinced that the case law means
       we need to adjust the WPIC in order to meet those requirements. I think
       we had it covered otherwise, but I'd rather be safe.[31

        When the court later asked for objections, neither party raised any further

objections.

       The jury found Smith not guilty of murder in the second degree, but guilty of first

degree manslaughter. Smith moved for a new trial on the basis that the jury was

wrongly denied the opportunity to acquit Smith of manslaughter based on justifiable

homicide. After argument, the trial court expressed reservations over the instructions:

       I'm very frustrated that we didn't have time, because this is the kind of
       analysis that I spent about three hours on yesterday is what should have
       been done before the trial before we got to the point of dealing with the
       jury instructions, but it wasn't done, because we didn't have this issue
       raised to the Court at that time. It was raised to the Court[by the State] at
       the last possible minute .. . .

              So what we should have done, I think, in hindsight is I think
       Instruction 19 should have said it's a defense to Murder in the Second
       Degree, and manslaughter because that is what is in the WPICs. They're
       both bracketed phrases, and then we would have probably covered all of
       the bases and I think we would have been in good enough shape.

(Emphasis added.)

        Despite recognizing that the jury should have been instructed that justifiable

homicide was a defense to manslaughter, the trial court denied Smith's motion for a



       3 WPIC 16.02 provides: "Justifiable Homicide—Defense of Self and Others: It is a defense to a
charge of[murder][manslaughter] that the homicide was justifiable as defined in this instruction."
                                               -5-
No. 73928-0-1/6


new trial. The court adopted the position urged by the State, that the instructions were

"clear enough." The court continued, however, to express doubt:

              So I'm going to deny the motion for a new trial on that basis. I'm
       not absolutely certain about that, but I'm certain enough that I think that's
       the decision I will make at this time.

       Smith appeals.
                                          II

       The State argues first that we should not consider Smith's challenge to the jury

instructions because it was either invited error or waived. We disagree.

   A. Invited Error

      "The basic premise of the invited error doctrine is that a party who sets up an

error at trial cannot claim that very action as error on appeal and receive a new trial."

State v. Hood, 196 Wn. App. 127, 131, 382 P.3d 710 (2016); State v. Momah, 167

Wn.2d 140, 153, 217 P.3d 321 (2009). Thus, for example, a party may not request a

particular instruction and later complain on appeal that the requested instruction was

given, even if the error is of constitutional magnitude. Hood, 196 Wn. App. at 131. State

v. Studd, 137 Wn.2d 533, 546, 973 P.2d 1049 (1999); City of Seattle v. Patu, 147

Wn.2d 717, 720, 58 P.3d 273(2002). In determining whether the invited error doctrine

applies, our courts consider "whether the defendant affirmatively assented to the error,

materially contributed to it, or benefited from it." In re Pers. Restraint of Coggin, 182

Wn.2d 115, 119, 340 P.3d 810(2014). The doctrine requires "affirmative actions by the

defendant." Hood, 196 Wn. App. at 135 (quoting In re Pers. Restraint of Thompson,

141 Wn.2d 712, 724, 10 P.3d 380 (2000)).




                                          -6-
No. 73928-0-1/7


       Here, there is nothing in the record that demonstrates an affirmative action or

even assent by Smith. Smith requested that the defense of justifiable homicide be

included in the "to convict" instructions for first and second degree manslaughter. The

State, not Smith, requested the last minute change to the instructions. Smith clearly

objected to the changes. Smith did not invite error. Hood, 196 Wn. App. at 135.

   B. Failure to Object

       The State next argues that Smith did not raise a formal objection to the

instructions and therefore waived his objection under CrR 6.15(c) and RAP 2.5(a).

      "A party is required to object to an erroneous instruction in order to afford the trial

court the opportunity to correct the error." CrR 6.15(c); State v. Jensen, 149 Wn. App.

393, 398, 203 P.3d 393(2009). Any objections to the instructions, as well as the

grounds for the objections, must be put on the record to preserve review. Hood, 196

Wn. App. at 134.

       In this case, while Smith did not enter a formal objection to the edited proposed

instructions to remove the justifiable homicide defense for manslaughter, the court was

well aware of Smith's objection. Defense counsel repeatedly informed the court that the

new instructions did not match the WPICs and should not be changed. The trial court,

concerned about the time it would take to delve into the issue, made a ruling without

allowing any further research. The trial court had multiple opportunities to remedy the

error. After the verdict, Smith again, provided the court an opportunity to correct its

error by moving for a new trial on the basis that the instructions were incorrect. This

issue was properly preserved for appeal.



                                          -7-
No. 73928-0-1/8


         Moreover, even if the error was not preserved, the jury instructions, as given,

eliminated the State's burden of proving lack of justification for manslaughter in the first

and second degree. Instructing the jury in a manner that relieves the State of its burden

of disproving self-defense is an error of constitutional magnitude that a defendant can

raise for the first time on appeal. State v. Byrd, 125 Wn.2d 707, 714,887 P.2d 396

(1995); State v. McCullum, 98 Wn.2d 484,488,656 P.2d 1064(1998).

                                                III

         Because Smith's claim is properly before us, we turn to the merits. Smith argues

that the trial court erred in failing to instruct the jury that the defense of justification

applied to first and second degree manslaughter. The State concedes the error. We

agree.

         Where a trial court has refused to give a justifiable homicide or self-defense

instruction, the standard of review depends on whether the refusal was based on fact or

law. State v. Brightman, 155 Wn.2d 506, 519, 122 P.3d 150(2005). If the trial court's

refusal was based on a factual dispute over whether there was sufficient evidence to

support the instruction, we review for abuse of discretion. Brightman, 155 Wn.2d at

519. But if the court refused to give the instruction based on a ruling of law, the

standard of review is de novo. Brightman, 155 Wn.2d at 519. Because the trial court

here found that there was evidence supporting a self-defense instruction, our review is

de novo.

         The defense of justifiable homicide is available for both murder and

manslaughter. State v. Hanton, 98 Wn.2d 129, 133, 614 P.2d 1280(1980)(proof of

self-defense negates the recklessness in first degree manslaughter); State v. McCullum,

                                             -8-
No. 73928-0-1/9


98 Wn.2d 484, 494,656 P.2d 1064 (1983); State v. Camara, 113 Wn.2d 631,639, 781

P.2d 483(1989), overruled on other grounds by State v. W.R., Jr., 181 Wn.2d 757, 336

P.3d 1134 (2014); WPIC 16.02. Pursuant to RCW 9A.16.050:

       Homicide is... justifiable when committed either:

            (1) In the lawful defense of the slayer, or his or her husband, wife,
      parent, child, brother, or sister, or of any other person in his or her
      presence or 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; or

             (2) In the actual resistance of an attempt to commit a felony upon
      the slayer, in his or her presence, or upon or in a dwelling, or other place
      of abode, in which he or she is.

       Once evidence of self-defense is presented, the defendant is entitled to have the

jury instructed on the State's burden to prove beyond a reasonable doubt that the

homicide was not justifiable. McCullum, 98 Wn.2d at 499-500.

      The trial court erred in failing to instruct the jury that the defense of justification

applied to first and second degree manslaughter.

                                              IV

       On appeal, the State concedes that a justifiable homicide instruction may be

available for both murder and manslaughter when the evidence is sufficient to support

the factual and legal basis of the defense. The State argues, however, that a justifiable

homicide instruction was not warranted because either there was insufficient evidence

to support the defense, or because Smith claimed that the injury was the result of an

accident. The State argues finally that any error was harmless. We disagree.




                                           -9-
No. 73928-0-1/10


A.     Sufficiency of the Evidence

       The defendant is entitled to have the jury instructed on his theory of the case if

there is evidence to support the theory. State v. Fisher, 185 Wn.2d 836, 848-49, 374

P.3d 1185 (2016). To prove justifiable homicide, there must be credible evidence that

(1) the defendant subjectively feared that he was about to be injured,(2)this belief was

objectively reasonable,(3) no more force was used than was necessary, and (4)the

defendant was not the aggressor. State v. Callahan, 87 Wn. App. 925, 929, 943 P.2d

676 (1997). The trial court must view the evidence in the light most favorable to the

defendant. Fisher, 185 Wn.2d at 849. "The trial court is justified in denying a request

for[an affirmative defense] instruction only where no credible evidence appears in the

record to support [it]." Fisher, 185 Wn.2d at 849(quoting McCullum, 98 Wn.2d at 488).

The evidence may come from whatever source tends to show that the defendant is

entitled to the instruction. Fisher, 185 Wn.2d at 849. The defendant is entitled to the

benefit of all the evidence, including facts inconsistent with his own testimony.

Callahan, 87 Wn. App. at 933; Fisher, 185 Wn.2d at 849.

       At trial, Smith's primary theory of the case was justifiable homicide. Evidence at

trial demonstrated that McClellan was high on methamphetamines, which increases

aggressiveness, and that he was angry on the night of his death. McClellan was a large

man and much younger than Smith. McClellan went to Smith's trailer three times during

the night, banged on the side of the trailer, and yelled at Smith to come out. When

Smith went outside the third time, McClellan was wielding an axe. McClellan yelled at

Smith to leave and "flinched" towards him with an axe. McClellan then took off his

watch, put it in his pocket, and punched Smith, causing "goose eggs" on Smith's head.

                                          -10-
No. 73928-0-1/11


While Smith told the police that a broken bottle caused McClellan's injuries, there was

evidence that one of Smith's kitchen knives also had McClellan's blood on it. The

medical examiner believed a knife had caused some of the injuries, including the stab

wound that killed McClellan.

       Based on the evidence presented at trial, the trial court ruled there was sufficient

evidence to support a justifiable homicide instruction. The State agreed. The evidence

was sufficient to demonstrate Smith subjectively feared McClellan, the fear was

objectively reasonable, the using of a knife or a beer bottle was a necessary amount of

force, and Smith was not the aggressor. While the trial court erred in failing to give the

requested instruction, it did not err in concluding that there was credible evidence to

support Smith's claim of self-defense.

       The State argues alternatively that Smith was not entitled to the justifiable

homicide instructions because he initially told the police that McClellan's fatal neck

wound was the result of an accident. While it may be true that self-defense is not

available where a defendant "consistently testifies that the fatal blow was accidental,"

State v. Hendrickson, 81 Wn. App. 397, 400, 914 P.2d 1194 (1996), it is also true that

"the law does not require an explicit statement of intent." Hendrickson, 81 Wn. App. at

401. Smith is entitled to the benefit of all the evidence, including facts inconsistent with

his own testimony. Callahan, 87 Wn. App. at 933; Fisher, 185 Wn.2d at 849.

       Smith did not testify at trial. Instead, Smith's primary theory of the case was

justifiable homicide. As discussed above, he presented sufficient evidence at trial that

conflicted with Smith's initial claim that the stabbing was accidental. After reviewing the

entire record in the light most favorable to Smith, Smith was entitled to the justification

                                           -11-
No. 73928-0-1/12


defense because, despite Smith's initial conflicting statement, there is credible evidence

that Smith stabbed McClellan in the neck in the act of self-defense.

B.     Harmless Error

       To satisfy the constitutional demands of a fair trial, the jury instructions, when

read as a whole, must correctly tell the jury of the applicable law, not be misleading, and

permit the defendant to present his theory of the case. State v. O'Hara, 167 Wn.2d

91,105, 217 P.3d 756(2009)(citing State v. Mills, 154 Wn.2d 1, 7, 109 P.3d 415

(2005)). When the record discloses an error in an instruction "given on behalf of the

party in whose favor the verdict was returned, the error is presumed to have been

prejudicial, and to furnish ground for reversal, unless it affirmatively appears that it was

harmless." State v. Wanrow, 88 Wn.2d 221, 237, 559 P.2d 548 (1977); See also State

v. Barry, 183 Wn.2d 297, 303, 352 P.3d 161 (2015). The error is harmless if the

appellate court is convinced beyond a reasonable doubt that it had no effect on the

outcome of the trial. State v. Hoffman, 116 Wn.2d 51, 97, 804 P.2d 577(1991); Barry,

183 Wn.2d at 303. The State bears the burden of demonstrating that the error was

harmless. Barry, 183 Wn.2d at 303.

       Because the State requested the amended manslaughter instructions, and the

verdict came out in the State's favor, the error is presumed to be prejudicial. The State

has the burden of showing that the error did not affect the outcome of the trial beyond a

reasonable doubt.

       In Washington, the absence of a justifiable homicide element in the "to convict"

instruction is not inherently prejudicial so long as there exists a separate instruction

defining justifiable homicide and explaining that it is the State's burden to prove that the

                                           -12-
No. 73928-0-1/13


homicide was not justifiable. Hoffman, 116 Wn.2d at 109. Here, however, the "to

convict" instruction for second degree murder included an element requiring the jury to

find the homicide was not justifiable, but the "to convict" instruction for manslaughter did

not include the justifiable homicide element. Adding to the confusion, while the

instructions included a separate instruction defining justifiable homicide, it stated only

that "it is a defense to the charge of murder in the second degree that the homicide was

justifiable as defined in this instruction." (Emphasis added.) The instruction left out that

justifiable homicide was also a defense to the charge of manslaughter. The

instructions, when read as a whole, conveyed to the jury exactly what the State

intended: that justification was not a defense to manslaughter. The instructions

misstated the law to the jury and were misleading.

       The State argues that this error was remedied by the concluding instructions,

which correctly told the jury that a finding of justifiable homicide as a defense for second

degree murder meant finding Smith not guilty "on verdict forms B and C [manslaughter

in the first and second degree] as well." However, the instruction was insufficient

because this court cannot know why the jury found Smith not guilty of second degree

murder.

       By finding Smith not guilty of second degree murder, we can assume that the jury

found that Smith used a knife or a beer bottle on McClellan without forming the

necessary intent to kill. It is impossible, however, to know if the jury considered

justifiable homicide when deciding on intent. The State argues that because justifiable

homicide negates intent, the jury necessarily considered justification in finding no intent.

Smith argues, and the trial court agreed, that the jury could have found Smith not guilty

                                          -13-
No. 73928-0-1/14


of second degree murder for a different reason and then moved on to manslaughter

with no opportunity under the instructions to apply the justifiable homicide defense to

the lesser crimes. The burden is on the State to prove "beyond a reasonable doubt"

that the incorrect instructions did not affect to outcome. The State has not met its

burden here.

        The trial court committed reversible error by removing any indication in the jury

instructions that justifiable homicide was a defense to manslaughter. Accordingly, we

reverse Smith's conviction for manslaughter in the first degree. The State may retry

Smith for manslaughter, but may not retry him on the murder charge of which he was

acquitted. U.S. Const. amend. V; State v. Linton, 156 Wn. 2d 777, 783, 132 P.3d 127

(2006).4

                                                    V

        Smith argues also that the trial court improperly calculated his offender score by

including an out-of-state conviction without sufficient evidence supporting the conviction.

We disagree.

        The Sentencing Reform Act creates a grid of standard sentencing ranges

calculated according to the seriousness level of the crime and the defendant's offender

score. State v. Ford, 137 Wn.2d 472, 479, 973 P.2d 452(1999). A defendant's

offender score is generally calculated by adding together the defendant's current

offenses and the prior convictions. State v. Hunley, 175 Wn.2d 901, 908-09, 287 P.3d

584 (2012); RCW 9.94A.525. The State bears the burden of proving criminal history,

        4 Smith assigned error to the trial court's admission of extrinsic evidence of prior inconsistent
statements made by Fisher to police detectives after she had already admitted to making the statements
previously at trial. As we hold that this case must be reversed and remanded for a new trial, we do not
address this issue.
                                                 -14-
No. 73928-0-1/15


including comparable out-of-state convictions, as a matter of due process. U.S. Const.

amend. XIV; Hunlev, 175 Wn.2d at 917.

       The State must establish the conviction's existence by a preponderance of the

evidence. Ford, 137 Wn.2d 480. "The best method of proving a prior conviction is by

the production of a certified copy of the judgment, but'other comparable documents of

record or transcripts of prior proceedings' are admissible to establish criminal history."

In re Adolph, 170 Wn.2d 556, 568-69, 243 P.3d 540(2010)(quoting Ford, 137 Wn.2d at

480). The State's burden is "not overly difficult to meet" and may be satisfied by

evidence that bears some "minimum indicia of reliability." Ford, 137 Wn.2d at 480-81.

       At sentencing, defense counsel argued the offender score was five. The court

concluded that Smith's offender score was six, because it chose to include a 2003

California conviction for possession of a controlled substance. The State was unable to

obtain a certified copy of Smith's California judgments, but was able to provide a

"disposition of arrest and court action" form that states Smith's name and birthdate, and

an arrest date of September 2, 2000. The form then lists three charges, including

"11377(A) Poss. Controlled Substance." The State also provided certified fingerprint

booking cards from the Lake County Sheriff's Office, and had Officer Ben Vodopich of

the Bellingham police department testify that he had analyzed the fingerprints to insure

they matched Smith, and that he had reviewed and matched the criminal history.

       The court found that the charge for possession of a controlled substance in 2003

related to one of the fingerprint booking cards. The relevant fingerprint booking card

stated Smith's name, date of birth, and the charge "11377(A)" for "poss controlled

substance." The card has the box checked for "con" meaning conviction, with the

                                          -15-
No. 73928-0-1/16


disposition date of August 22, 2003. Officer Vodopich testified that he had matched the

fingerprint to Smith. In the end, the court found the evidence demonstrated "some

minimal indicia of reliability beyond mere allegation."

       This evidence was sufficient, even without a certified copy of judgment,for the

trial court to find by a preponderance of the evidence that the prior conviction existed.

The evidence consists of official government records provided by the California Sheriffs

Department, and are sufficiently detailed to describe the crime and the conviction. See

Adolph, 170 Wn.2d at 570 (holding that a Department of Licensing driving record

abstract and DISCIS criminal history are comparable to a certified judgment and

sentence). The combination of these two records showing an arrest and later conviction

of possession of a controlled substance was more than enough to demonstrate the

minimum indicium of reliability necessary for the State to meet the preponderance of the

evidence burden.

                                      CONCLUSION

       Smith's conviction for first degree manslaughter is reversed and remanded for a

new trial.




WE CONCUR:



jSA
 rN 1/4-(212.%




                                          -16-
