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IN THE COURT OF APPEALS OF THE STATE OF WASHING&Oat'

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STATE OF WASHINGTON, ) 

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) No. 75070-4-1

Respondent, ) 9? z f—

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) DIVISION ONE C/7

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V. )

) UNPUBLISHED OPINION

SETH THOMAS DAVIS, )

)

Appellant. ) 'FILED: October 2, 2017

)

APPELWICK, J. — A jury convicted Davis of assault in the second degree.

He argues that the trial court erred by not instructing the jury on a lesser included

offense, and erred in its initial aggressor instruction. We affirm.

FACTS

Seth Davis and Lauren Cross have a child together. At the time of the

incident, the relationship between Davis and Cross was "on-again, off-again."

On her birthday, Cross went out for drinks with some male coworkers at a

restaurant. Davis showed up at the restaurant and sat down next to the group. A

dispute arose between Davis and Cross's coworker Timothy Fielding. Food was

thrown. A physical altercation ensued. Fielding suffered a broken nose.

Davis was charged with assault in the second degree. A jury found him

guilty. Davis appeals.
No. 75070-4-1/2

DISCUSSION

Davis makes two arguments. First, he argues that the trial court erred by

not giving an instruction for the lesser included offense of assault in the fourth

degree. Second, he argues that the trial court erred in giving an initial aggressor

instruction. In addition, the State seeks appellate costs.

I. Lesser Included Offense Instruction 

Davis argues that the facts of this case warranted a lesser included offense

instruction of assault in the fourth degree, in addition to the assault in the second

degree instruction that the trial court gave. The State argues that this argument

was waived, because Davis failed to object to the failure to give a lesser included

offense instruction. Under RAP 2.5(a), an argument on appeal is waived if a party

failed to make that argument at trial.

At the close of the State's case, Davis moved to dismiss the assault in the

second degree charge, and asked the trial court to proceed only with the assault

in the fourth degree charge. But, when the court asked for the parties' objections

to the jury instructions, Davis did not object to the lack of a lesser included offense

instruction. Any objections to the instructions, as well as the grounds for the

objections, must be put in the record to preserve review. State v. Sublet 176

Wn.2d 58, 75-76, 292 P.3d 715 (2012). Failure to object to jury instructions, as

required by CrR 6.15, waives any ability to pursue that claim on appeal. State v. 

O'Brien, 164 Wn. App. 924, 932, 267 P.3d 422 (2011). Because Davis did not

object to the omission of a lesser included offense instruction, we decline to review

this assignment of error on appeal.

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No. 75070-4-1/3

Under an exception to RAP 2.5(a), we review manifest constitutional errors

for the first time on review. State v. O'Hara, 167 Wn.2d 91, 98, 217 P.3d 756

(2009). But, our Supreme Court has explicitly stated that "instructional errors not

falling within the scope of RAP 2.5(a), that is—not constituting manifest

constitutional error—include the failure to instruct on a lesser included offense."

Id. at 103. This argument was waived.

II. Initial Aggressor Instruction 

Davis next argues that the trial court's initial aggressor instruction was

erroneous. We review jury instructions de novo, within the context of the jury

instructions as a whole. State v. Jackman, 156 Wn.2d 736, 743, 132 P.3d 136

(2006).

Using the verbatim language of 11 Washington Practice: Washington

Pattern Jury Instructions: Criminal 16.04, at 256 (4th ed. 2016) (WPIC 16.04), the

trial court instructed the jury that Davis may not claim self-defense if the jury found

that Davis was the initial aggressor:

No person may, by any intentional act reasonably likely to

provoke a belligerent response, create a necessity for acting in selfdefense and thereupon use, offer, or attempt to use force upon or

toward another person. Therefore, if you find beyond a reasonable

doubt that the defendant was the aggressor, and that defendant's

acts and conduct provoked or commenced the fight, then selfdefense is not available as a defense.

Davis concedes that the trial court took this directly from WPIC 16.04, but contends

that it erroneously states the law for two reasons. First, he argues that the

provoking act must be both intentional and unlawful. Second, Davis contends that

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No. 75070-4-1/4

the instruction must explicitly state that the act must have been reasonably likely

to provoke a belligerent response from a reasonable person.

Davis did not object at trial. Under RAP 2.5(a), this alleged error is therefore

waived unless it amounts to manifest constitutional error. To establish manifest

constitutional error, Davis must show the alleged error affected his rights at trial.

O'Hara, 167 Wn.2d at 98. His rights at trial were not adversely affected, because

no error occurred.

The language of the instruction comes directly from WPIC 16.04. First, the

word "intentional" replaced the word "unlawful" in WPIC 16.04 following the

decision in State v. Arthur,42 Wn. App. 120, 124, 708 P.2d 1230 (1985). State V. 

Cyrus,66 Wn. App. 502, 509, 832 P.2d 142 (1992). In Arthur, we held the term

"unlawful" to be unconstitutionally vague, and stated that lain aggressor

instruction must be directed to intentional acts." 42 Wn. App. at 124. In State v. 

Wingate, 155 Wn.2d 817, 821, 122 P.3d 908 (2005), the court pointed out that it

had approved this WPIC in State v. Riley, 137 Wn.2d 904, 908-09, 976 P.2d 624

(1999). It then declined to apply a Court of Appeals decision that used 'unlawful

act' in the aggressor instruction, noting that the language had been found

unconstitutionally vague in Arthur. Wingate, 155 Wn.2d at 822. Davis presents

no facts specific to this case that would lead us to depart from these decisions.

Second, Davis's concern regarding a reasonable person is adequately

addressed by the requirement that a belligerent response be "reasonably likely."

The initial aggressor instruction was not erroneous.

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No. 75070-4-1/5

III. Costs on Appeal 

The State seeks appellate costs. The trial court found Davis indigent for the

purposes of his appeal. When a trial court makes a finding of indigency, that

finding remains throughout review unless the commissioner or clerk determines by

a preponderance of the evidence that the offender's financial circumstances have

significantly improved. RAP 15.2(f). In support of its argument that Davis should

be liable for costs, the State notes that Davis's work release form stated that he

was employed. This information alone—that Davis is employed—does not

establish that Davis's financial situation has significantly improved such that it

rebuts the presumption of indigency. The State is not entitled to costs.

We affirm.

WE CONCUR:

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