IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON STATE OF WASHINGTON, Respondent,

v. No. 73401-6-1 DIVISION ONE en o
i. ~~~' <i o-> >-*• y.: <./-> m ~o '__• -. ro en -X -T. 23« CHRISTOPHER ROBIN HOOD, Appellant. 

## PUBLISHED OPINION ^ ~£ 

## FILED: September26, 2016 *" ^ ody sentencing statute, RCW

to which crimes have an 18-month Becker, J. — The community cust 

### 9.94A.701, is not ambiguous with respect 

### term ofcommunity custody. Finding no errorin sentencing and holding that it
was not manifest constitutional errorto use the pattern instruction defining reasonable doubt, we affirm. FACTS 

### According to testimony attrial, appellant ChristopherHood was married to LD from 2006 to 2014. As the divorce was being finalized, Hood showed up 

### uninvited at LD'sapartment and workplace on several occasions. LD obtained a 

### protection order. On November21, 2014, LD was preparing to leave forwork around 3:45 a.m. When she opened the door, Hood burst inand shoved her 

### against thewall. Hepulled a gunfrom his waistband, hit herwith the butt of theNo. 73401-6-1 gun two orthree times, and held the gun to her head. Hood leftwhen a dog started barking upstairs. LD called the police. Ajury convicted Hood ofthree crimes ofdomestic violence as defined under RCW 10.99.020—burglary in the first degree, felony violation of a court order, and stalking. The trial court imposed an exceptional sentence based on 

### thejury's finding ofan aggravating factor. Hood appeals.
REASONABLE DOUBT INSTRUCTION 

### The court gave the standard reasonable doubt instruction, WPIC 4.01. 11 Washington Practice: Washington Pattern Jury Instructions: Criminal4.01, 

### at 27 (3d ed. Supp. 2014-15) (WPIC). The instruction reads inrelevant part, "A reasonable doubt is one for which a reason exists and may arise from the 

### evidence or lack ofevidence." Hood did not object. For the first time on appeal, 

### he argues that itimplicitly—and unconstitutionally—requiresjurors to be able to articulate reasonable doubt. He claims the instruction undermines the 

### presumption ofinnocence and shifts the burden of proof in the same way as the fill-in-the-blank arguments that our Supreme Court disapproved inState v. Emery, 174 Wn.2d 741, 760, 278 P.3d 653 (2012). 

### The Statefirst contends that Hood invited any errorthat may exist inthe 

### pattern instruction. The basic premise of the invited error doctrine is that a party who sets up an error at trialcannot claim that very action as error on appeal and receive a new trial. State v. Momah, 167 Wn.2d 140, 153, 217 P.3d 321 (2009), 

### cert, denied, 562 U.S. 837 (2010). Thus, a party may not request a particular 

### instruction and later complain on appeal thatthe requested instruction was given.No. 73401-6-1 State v. Studd, 137 Wn.2d 533, 546, 973 P.2d 1049 (1999). Invited error prevents review of instructional errors even ifthey are ofconstitutional magnitude. City of Seattle v. Patu, 147 Wn.2d 717, 720, 58 P.3d 273 (2002). Hood responds thatthe State's claim of invited error is not supported by the record and that ifanything his counsel did is interpreted as invited error, then he received ineffective assistance ofcounsel. When the court inquired atthe beginning ofthe trial, the prosecution had submitted instructions but the defense had not. THE COURT:
. . . Let's see. Itdoesn't look like I've gotten instructions yet. So I'll be needing those—did you submit them? [PROSECUTOR]: Yes, Idid. THE COURT:
... Do we have any from the defense? [DEFENSE COUNSEL]: No, you don't. THE COURT: Okay. Whateveryou're going to provide, please do it by tomorrow. A week later, as the defense was about to rest, the court tentatively promised to provide counsel with a set ofproposed instructions by the next morning. The court stated that defense counsel had "stipulated" to the instructions proposed by the State. THE COURT: Okay. So itsounds like we'll do—we might do instructions inthe morning. We'll probably do closings inthe afternoon first thing. [PROSECUTOR]: Sounds good. THE COURT: All right. One otherthing. / wanted to puton the record that counselhas stipulated to the juryinstructions submittedby the prosecution. And Iwill review those and get a proposed packet backto you. I'll try to do that over the break so we can getthose taken care of maybe tomorrow morning. Allright? You ready? (Emphasis added.)No. 73401-6-1


### The defense rested mid-morning ofthe next day. The court stated thatthe defense had "joined" inthe State's instructions. THE COURT: Okay. Well, Itell you what we'll do. Ialmost have the instructions ready. Ijustwant to—you did leave out the Assault 1 to convict instruction, at least inthe ones that Igot, so Teresa is preparing that one. Maybe you filed it, Idon't know. But in any event—and then Ithink, as Iunderstandit, the defense hasjoinedin the submission ofthe prosecution, so those should be ready to go. Why don't Iinstructthejury afterthe morning recess, and then we'll recess until—can you be back here at 1:00? (Emphasis added.) After the recess, the court and counsel discussed the instructions. Both counsel raised issues with some ofthe instructions the court was proposing to 

### give. The court made certain modifications. Thejurywas then called in, and the
court read the instructions. The State bases its claim of invited error on the trial court's statements, 

### quoted above, that Hood "stipulated to" and "joined in" the jury instructions submitted bythe State. The premise ofthe State's argument is that a criminal 

### defendanthas an obligation under CrR6.15(a)1 to proposejury instructions. The

1(a) Proposed Instructions. Proposedjury instructions shall be served and filed when a case is called for trial by serving 

### one copy upon counsel foreach party, byfiling one copy withthe clerk, and by delivering the original and one additional copy for each party to the trialjudge. Additional instructions, which could not be reasonably anticipated, shall be served and filed at any time before the court has instructed thejury. Not less than 10 days before the date of trial, the court may 

### order counsel to serve and file proposed instructions not less than 3 days before the trial date.No. 73401-6-1 

### State contends that defense counsel efficientlydischarged that obligation by choosing to join inthe State's proposed instructions ratherthan generating a set of proposed instructions for the defense, and as a result, Hood should not now be heard to argue that one ofthe State's proposed instructions is erroneous. 

### The State's premise is incorrect. CrR 6.15(a) does not impose an obligation to proposejury instructions. If a party wishes to propose instructions, CrR 6.15(a) sets forth the timing and procedure to be followed. See State v. Sublett, 176 Wn.2d 58, 75-76, 292 P.3d 715 (2012). Since it is the State that wishes to secure the conviction, the State ordinarily assumes the burden of proposing an appropriate and comprehensive set ofinstructions. Just as a defendant has no duty to bring himselfto trial, Barkerv. Winqo, 407 U.S. 514, 527, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972), a defendant has no duty to propose the instructions that will enable the State to convict him. 

### It is typical for discussions aboutjury instructions to occur more than once during the course of a trial. The initialdiscussions are often somewhat informal and do not need to be held in open court. Sublett, 176 Wn.2d at 75. Often, the 

### trialjudge will review various drafts, solicit comments, and strive to isolate, understand, and reduce the areas ofdisagreement between the parties before 

### producing the final setofinstructions thatthe court proposes to give. Beforethe

Each proposed instruction shall be on a separate sheet of 

### paper. The original shall not be numbered nor include citations of authority. Any superiorcourt may adopt special rules permitting certain instructions to be requested by numberfrom any published book of instructions.No. 73401-6-1 final instructions are given to thejury, counsel must be given a formal opportunity to object inthe absence ofthejury. CrR 6.15(c). Any objections to the instructions, as well as the grounds for the objections, must be put on the record to preserve review. Sublett, 176 Wn.2d at 75-76. All ofthat occurred in this
case. Hood did not propose instructions, but he did raise specific objections to the court's set of proposed instructions, and his objections led to changes being made. Itis not clearwhy the trial court made a point ofsaying that Hood had 

### "joined in" or "stipulated to" the State's proposed instructions. There is no record of Hood formally stipulating to the correctness ofthe instructions proposed by the State. The court's remarks may have simply been intended to memorialize the fact that Hood had not proposed a competing set ofinstructions. Inany event, 

### the court's remarks do not provide a basis for holding that Hood specifically invited the courtto give the reasonable doubt instruction to which he now assigns

error. Indetermining whetherthe invited errordoctrine applies, our courts consider "whetherthe defendant affirmatively assented to the error, materially contributed to it, or benefited from it." In re Pers. Restraint of Coqqin, 182 Wn.2d 115, 119, 340 P.3d 810 (2014). "The doctrine appears to require affirmative 

### actions by the defendant." Inre Pers. Restraint ofThompson, 141 Wn.2d712, 724, 10 P.3d 380 (2000). Ithas been applied when a defendanttook knowing 

### and voluntary actions to set up the error. Thompson, 141 Wn.2d at 723-24. For example, inthe consolidated appeals examined in Studd, the defendants wereNo. 73401-6-1 

### claiming self-defense. Those defendants who proposed a particular self-defense instruction thatwas accepted by the court and given to thejury were held to have invited the errorthey claimed on appeal. Studd, 137 Wn.2d at 547. Nothing of the sort occurred inthis case. Hood did not affirmatively request any particular instruction. We conclude appellate review ofthe reasonable doubt instruction is not barred by the doctrine of invited error. This is not to say that defense counsel can safely ignore the process of developing the instructions in a criminal case. An attorney has an obligation to objectto instructions which appearto be incorrect or misleading and must also propose instructions necessary to support argument ofthe client's theory ofthe
case. Failure to preserve error by objecting inthe trial court generally operates
as a waiver, RAP 2.5(a), and this case is no exception. Hood contends that despite his failure to object, he may raise the alleged error under RAP 2.5(a)(3)
as a manifesterror affecting a constitutional right. But the error he alleges was not manifest, i.e., itwas not an obvious errorthat the trial court would be expected to correct even without an objection. State v. O'Hara, 167 Wn.2d 91, 99-100, 217 P.3d 756 (2009). Our Supreme Court has instructed trial courts to
use only the pattern instruction. State v. Bennett, 161 Wn.2d 303, 318, 165 P.3d 1241 (2007). The trial courtwas not obligated to anticipate thatthe use ofWPIC 4.01 would be challenged on appeal as undermining the presumption of innocence. Although the doctrine of invited error does not bar review, we decline to review Hood's challenge to the reasonable doubt instruction because he did not

7No. 73401-6-1 

### objectto itattrial and giving the instruction was not manifest constitutional error. COMMENT ON THE EVIDENCE On the charges ofburglary and felony violation of a court order, the State alleged the aggravating circumstance that "the offense was part ofan ongoing pattern ofpsychological, physical, or sexual abuse of a victim or multiple victims manifested by multiple incidents over a prolonged period of time." RCW 9.94A.535(3)(h)(i). Inthe second phase of a bifurcated trial, thejury found the allegation proven. 

### Using a pattern instruction, the court instructed thejurythat "the term 'prolonged period oftime' means more than a few weeks." WPIC 300.17. The State concedes that this instruction constituted an improper comment on the evidence. State v. Brush, 183 Wn.2d 550, 559, 353 P.3d 213 (2015). But the

error was harmless. The evidence showed that Hood committed domestic abuse 

### inseveral incidents occurring over a period from 1999 to 2014. Whetherthat


### was a prolonged period of time was not a contested issue. Ifthejurors believed the evidence ofthe prior domestic abuse, they could not have failed to findthat the domestic abuse occurred over a prolonged period oftime. Thus, the
erroneous instruction was not prejudicial. See State v. Lew, 156 Wn.2d 709, 721-22, 726, 132 P.3d 1076 (2006). There is no reversible error. OFFENDER SCORE The court sentenced Hood to an exceptional sentence totaling 156 

### months. The exceptional sentence was due to the aggravating circumstance of
an ongoing pattern ofabuse.

8No. 73401-6-1 Hood contends that the trial court should have granted his requestto classify the two convictions as the same criminal conduct. To do so would have lowered his offender score and potentially lowered the length ofthe exceptional
sentence. The defendant bears the burden at trial to show that current offenses encompass the same criminal conduct. State v. Graciano, 176Wn.2d 531, 539- 40, 295 P.3d 219 (2013). Our review is for abuse ofdiscretion or misapplication ofthe law. Graciano, 176 Wn.2d at 536. "Same criminal conduct" means "two or more crimes that require the same criminal intent, are committed at the same time and place, and involve the same victim." RCW 9.94A.589(1)(a). Hood argues that both crimes required the same criminal intent—the intent to assault LD. The sentencing court could have 

### reasonably taken a different view ofthe evidence. Hood violated the no-contact orderwhen he approached the condo where LD lived. Having heard testimony about past vandalism ofthe condo, the trial court could have reasonably found that Hood did not necessarily intend an assault when he approached the condo. The court may have found that he developed the intentto commit an assault inside—the conductthat constituted the burglary—only after entering. We conclude the trial courtdid not abuse its discretion infinding that Hood did not
meet his burden to show that his criminal intent was the same for each crime. COMMUNITY CUSTODY TERM 

### At Hood's sentencing, the trial court imposed a term of 18 months of community custody under RCW 9.94A.701. Hood did not objectto the length ofNo. 73401-6-1 

### the term atthattime. On appeal Hood contends the statute is ambiguous as to the length ofthe community custody term for burglary inthe firstdegree. Achallenge to a sentence that is contrary to law may be raised forthe first time on appeal. State v. Anderson. 58 Wn. App. 107, 110, 791 P.2d 547 (1990). Questions ofstatutory interpretation are questions of law subject to de novo review. State v. Franklin, 172Wn.2d 831, 835, 263 P.3d 585 (2011). The goal ofstatutory interpretation is to discern and implement the legislature's intent. State v. Armendariz, 160Wn.2d 106, 110, 156 P.3d 201 (2007). In interpreting a statute, we first look to the statute's plain language. Armendariz, 160 Wn.2d at 110. Where the plain language ofthe statute is subjectto more than one reasonable interpretation, it is ambiguous. Armendariz, 160 Wn.2d at 110. To determine the plain meaning of a statute, the court looks to the text, the context ofthe statute inwhich the provision is found, related provisions, and the statutory scheme as a whole. State v. Jones, 172 Wn.2d 236, 242, 257 P.3d 616 (2011). In relevant part, the statute provides: (1) Ifan offender is sentenced to the custody ofthe departmentfor one ofthe following crimes, the court shall, in addition to the other terms ofthe sentence, sentence the offenderto community custody for three years: (b) A serious violentoffense. (2) A court shall, in addition to the otherterms ofthe sentence, sentence an offenderto community custody for eighteen months when the court sentences the person to the custody ofthe department for a violent offense that is not considered a serious violent offense.

10No. 73401-6-1(3) A court shall, in addition to otherterms ofthe sentence, sentence an offenderto community custody for one yearwhen the court sentences the person to the custody ofthe departmentfor: (a) Any crime againstpersons under RCW 9.94A.411(2). RCW 9.94A.701 (emphasis added). 

### Burglary inthe firstdegree is a "violentoffense." See RCW 9.94A.030(55)(i) ("violent offense" means "anyfelony defined under any law as a class A felony"); RCW 9A.52.020(2) ("Burglary inthe first degree is a class A felony"). Thus, it falls within RCW 9.94A.701(2), which requires a community custody term of 18 months for a violentoffense. Butburglary inthe first degree 

### is also a "crime against persons" under RCW9.94A.411 (2). Ittherefore also falls within RCW 9.94A.701(3)(a), which requires a community custody term of 12 months for a crime against persons. Hood contends the legislature created an 

### ambiguity by placing the crime of firstdegree burglary in two differentcategories and thatthe ambiguity mustbe resolved by shortening his term ofcommunity 

### custodyto 12 months inaccordance with the rule oflenity. Burglary inthe firstdegree is not the only crime thatfalls into more than


### one category. "Serious violentoffenses" and "violentoffenses" are listed at RCW 9.94A.030(46) and (55), respectively. Many, if not most, ofthe crimes on the "serious violent offense" and "violent offense" lists are also listed as "crimes 

### against persons" under RCW 9.94A.411 (2). Statutes must be interpreted and construed so that all language used is 

### given effect, with no portion rendered meaningless or superfluous. State v.J.P., 149 Wn.2d 444, 450, 69 P.3d 318 (2003). Ifwe adopted Hood's interpretation of 

### the statute, RCW 9.94A.701(1)(b) and (2) would be rendered largely superfluous

11No. 73401-6-1 

### because many "serious violent offenses" and "violentoffenses" could only be punished with 12 months of community custody instead ofthe 3 years or 18 months the legislature prescribed insubsections (1)(b) and (2). The statute sets up a tiered step-down sentencing structure depending on 

### the seriousness ofthe crime: 3 years ofcommunity custody is imposed for "serious violent offenses"; 18 months for "a violent offense that is not considered
a serious violent offense"; and 12 months for crimes against persons. RCW 

### 9.94A.701(1)(b), (2), (3)(a). The statutory scheme as a whole establishes that 

### the legislature intended forindividuals whocommitviolent offenses to receive a 

### longerterm ofcommunitycustody thanindividualswhocommit nonviolentcrimes 

### against persons. This is consistentwith thelegislature's purpose to "ensurethat thepunishmentfor a criminal offense isproportionateto the seriousness ofthe offense and the offender's criminal history." RCW 9.94A.010(1). For crimes that are listed as both serious violent offenses and violent 

### offenses, the legislature eliminated the appearance ofambiguity by stating that the court shall sentence an offense to 18 months ofcommunity custody for a "violent offense that is not considered a serious violent offense." RCW 

### 9.94A.701(2). Hood points out that thelegislature did notincludethis type of clarifying languagein RCW 9.94A.701(3)(a) forcrimes that are listed both as violentoffenses and crimes against persons. Therefore, he argues, it is notclear 

### that thelegislature intended an offenselisted as both aviolentoffense and a crime against persons to be punished as a violentoffense. 

### We disagree. Theclarifying language in subsection (2) is more accurately

12No. 73401-6-1 viewed as an expression ofthe legislature's intentto create a tiered step-down sentencing structure, as detailed above. To determine the plain meaning of subsection (3)(a), itshould be interpreted in a way that is consistentwith the overall statutory scheme. We conclude RCW 9.94A.701 is not ambiguous as to the length ofthe community custody term for burglary inthe first degree. The only reasonable reading of RCW 9.94A.701 is that itrequires a term of 18 months ofcommunity 

### custodyfor a violent offense that is not considered a serious violent offense,
even if it is also a crime against persons. Because the potential ambiguity can be reconciled in a way that reflects the legislature's clear intent, we do not apply the rule of lenity. State v. Oakley, 117 Wn. App. 730, 734, 72 P.3d 1114(2003), review denied, 151 Wn.2d 1007 (2004). The trial court correctly applied RCW 

### 9.94A.701(2) and sentenced Hood to 18 months ofcommunity custody for first degree burglary. APPELLATE COSTS 

### Inhis opening brief, Hood asks us not to impose appellate costs inthe event that the State prevails on appeal and seeks costs. The State does not 

### respond. Under RCW 10.73.160(1), this court has discretion to decline to impose appellate costs on appeal. State v. Sinclair, 192 Wn. App. 380, 385, 388, 367 P.3d 612, review denied, 185Wn.2d 1034(2016). In light of Hood's indigent 

### status, our presumption under RAP 15.2(f) that he remains indigent "throughout the review," and the State's failure to respond, we exercise our discretion notto impose appellate costs.

13No. 73401-6-1
Affirmed.

WE CONCUR: 

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