Opinion
No. 63820-3-I.
October 19, 2009.
Appeal from the Superior Court, Pierce County, No. 05-2-11198-0, Bryan E. Chushcoff, J., entered April 4, 2008.
Affirmed by unpublished opinion per Leach, J., concurred in by Becker and Lau, JJ.
Myoung Park appeals his civil commitment as a sexually violent predator (SVP) under chapter 71.09 RCW. He claims a jury instruction misstated the law and misled the jury on how to apply the law to the evidence. Because the instruction correctly stated the law and satisfactorily allowed the parties to present their respective theories of the case, we affirm.
Background
In 1986, Park suffered traumatic brain injury in a motorcycle accident. He was 22 years old and living in Korea. After a long recovery period, Park moved with his family to the United States. The brain injury had many unfortunate side effects. His frontal lobe was damaged leaving him partially paralyzed on his left side. He also lost control of his impulses and began manifesting socially dysfunctional behavior.
On October 22, 1997, Sarah Dube was shopping at the Lakewood Mall. She saw Park sitting alone near the children's play area. Noticing his cane and thinking he needed help, she sat down near Park. He slid up next to her and asked her to be his wife or girlfriend and if he could have her babies. She tried to leave but he held her down, touched her face, and grabbed her breasts. Eventually, Dube escaped and alerted mall security. A similar event took place at the Tacoma Mall in 1998. Twenty-seven-year-old Camay McClure was on her lunch break when Park noticed her sitting on a bench. Park approached McClure and engaged her in conversation. The encounter ended with Park touching her knee, thigh, and buttocks.
Park has also touched children. In 2001, Park molested 13-year-old R.B. She lived in the same apartment complex as Park and had been playing with family and friends in the apartment courtyard. After watching the girls play, Park approach R.B. from behind and put his hand up her shirt and fondled her breast. R.B. broke away after 10 or 15 seconds. According to R.B. and R.B.'s mother, Park would occasionally expose himself and rub himself while watching the girls play. Around the same time as this incident, Park grabbed a toddler above the waist as she rode her tricycle past his apartment.
Not long after the last of these events, Park was arrested and charged with one count of child molestation in the second degree, one count of indecent exposure to a child under 14 years of age, and one count of assault in the second degree with sexual motivation. On September 6, 2001, Park pleaded guilty in Pierce County Superior Court to the three charges. Park received a Special Sex Offender Sentencing Alternative (SSOSA) on two counts and a suspended sentence on the third. He was released to community placement in December of 2001. As part of his SSOSA, he was ordered to complete an outpatient sex offender treatment program and to have no contact with minors. He was further required to live with his sister and remain in direct line of sight at all times by a supervising chaperone.
Park did not comply with the terms of his sentence. Though he attempted to attend sex offender treatment, Park stopped attending because an interpreter was not provided. He began meeting with his Department of Corrections (DOC) community correction officer, Monica Grupp, in May 2002. On two occasions Park met Grupp with his pants unzipped and his penis visible.
Park was not under Grupp's supervision for long. Grupp arrested Park in June 2002 after DOC received a series of complaints about Park's behavior. Though the substance of these complaints is not in the record before us, this record contains significant detail about a number of uncharged offenses that occurred before his re-confinement.
In April 2002, Park knocked on Stephanie Hembroff's door. When she answered, he asked for a hug. Park grabbed her and pulled her to his groin. Hembroff was released only after her husband physically intervened. A few days later, Park forced his way back into Hembroff's home through the front door. At the time, Stephanie Pesacall, who lived with Hembroff, was home alone. Park chased Pesacall around the house and refused to leave. Though Park eventually left, he returned later that day and got into a shouting match with Hembroff's son. Park left after the police were notified.
Also in the spring of 2002, Park asked Charmaine Smith if he could rest on her porch. Because he appeared distressed, she consented. After she went back inside her home to fold laundry, Park entered through her front door. He asked her for a handshake. When she extended her hand, Park pulled her in and grabbed her buttocks. Around the same time, Park trespassed into Maria Buchanan's home. Buchanan had a nine-year-old daughter whom Park had kissed on an earlier occasion. Park asked Buchanan for a hug. When she refused, he reached out and grabbed her breast.
On August 26, 2005, while Park was still imprisoned, the State filed a petition seeking to civilly commit Park as an SVP under chapter 71.09 RCW. The State proposed the jury instructions at issue in this case. The court's instructions included former Washington Pattern Instruction 365.14 rather than the amended version adopted in 2006. Defense counsel did not object to this instruction or propose any alternative. After a short deliberation, the jury returned a verdict finding Park was a sexually violent predator. Park was committed to the Special Commitment Center (SCC) and now appeals.
RCW 71.09.020(16) defines a "sexually violent predator" as "any person who has been convicted of or charged with a crime of sexual violence and who suffers from a mental abnormality or personality disorder which makes the person likely to engage in predatory acts of sexual violence if not confined in a secure facility."
Standard of Review
On appeal, we review alleged errors of law in jury instructions de novo. Jury instructions are proper when, as a whole, they accurately state the law, do not mislead the jury, and permit both parties to argue their respective theories of the case.
State v. Pirtle, 127 Wn.2d 628, 656, 904 P.2d 245 (1995).
State v. Reed, 150 Wn. App. 761, 770, 208 P.3d 1274 (2009) (quoting State v. Teal, 152 Wn.2d 333, 339, 96 P.3d 974 (2004)).
Discussion
To prevail in an SVP proceeding, the State must prove three elements beyond a reasonable doubt: (1) that the respondent has been convicted of or charged with a crime of sexual violence, (2) that the respondent suffers from a mental abnormality or personality disorder, and (3) that such mental abnormality or personality disorder makes the respondent likely to engage in predatory acts of sexual violence if not confined in a secure facility. With respect to the third element, instruction 6 read:
In re Det. of Audett, 158 Wn.2d 712, 727, 147 P.3d 982 (2006) (citing RCW 71.09.020(16)).
"Likely to engage in predatory acts of sexual violence if not confined in a secure facility" means that the person more probably than not will engage in such acts if released unconditionally from detention in this proceeding.
In determining this issue, you may consider only placement conditions and voluntary treatment options that would exist for the person if unconditionally released from detention in this proceeding.
This is the language of Washington Pattern Instruction 314.15 before it was amended in 2006. The instruction now reads:
See 6A Washington Practice: Washington Pattern Jury Instructions: Civil 365.14, at 516-17 (5th ed. 2005) (WPI).
"Likely to engage in predatory acts of sexual violence if not confined in a secure facility" means that the person more probably than not will engage in such acts if released unconditionally from detention in this proceeding.
[I]n determining whether the respondent is likely to engage in predatory acts of sexual violence if not confined to a secure facility, you may consider all evidence that bears on the issue. In considering [placement conditions or] voluntary treatment options, however, you may consider only [placement conditions or] voluntary treatment options that would exist if the respondent is unconditionally released from detention in this proceed[ing].
6A Washington Practice: Washington Pattern Jury Instructions: Civil 365.14 (2009) (WPI), http://www.westlaw.com.
Park's sole assignment of error is that the second paragraph of instruction 6 unequivocally directed the jury to ignore relevant evidence presented by both Park and the State. Park claims this error directed the jury to disregard Park's own testimony about his attitude towards reoffending, thereby preventing him from arguing his theory of the case. He further claims that this instruction directed the jury to disregard the State's evidence of Park's risk of reoffending with the consequence that the jury based its verdict on speculation.
The State asserts that pursuant to Civil Rule 51(f) and Washington case law, Park waived his right to assign error to instruction 6 by not objecting to it at trial. Alternatively, the State argues that instruction 6 was proper, and if not, any resulting error was harmless.
Because Park did not object to the jury instruction, the first issue we must decide is whether Park waived his right to challenge the jury instruction on appeal. "It is well-settled law that before error can be claimed on the basis of a jury instruction given by the trial court, an appellant must first show that an exception was taken to that instruction in the trial court." However, a narrow exception to this rule allows a "manifest error affecting a constitutional right" to be raised for the first time on appeal. A "manifest error is one that `actually affected the defendant's rights; it is the showing of actual prejudice that makes the error manifest.'" Without a showing of practical and identifiable prejudice in the case, no "manifest error" will be found. As our Supreme Court has admonished, "[The exception] is not intended to afford criminal defendants a means for obtaining new trials whenever they can identify a constitutional issue not litigated below." This admonition is equally applicable in this civil proceeding.
State v. Bailey, 114 Wn.2d 340, 345, 787 P.2d 1378 (1990).
RAP 2.5(a)(3).
In re Det. of Sease, 149 Wn. App. 66, 75, 201 P.3d 1078 (2009) (quoting State v. McFarland, 127 Wn.2d 322, 333, 899 P.2d 1251 (1995) (internal quotation marks omitted)).
State v. Lynn, 67 Wn. App. 339, 346, 835 P.2d 251 (1992).
State v. Salas, 127 Wn. App. 173, 183, 897 P.2d 1246 (1995) (internal quotation marks omitted).
We preview the merits of a claimed constitutional error to determine whether the argument is likely to succeed. In determining error in jury instructions, we ask whether the trial court's instructions, when read as a whole, accurately state applicable law, do not mislead the jury, and permit each party to argue their theory of the case. The standard for clarity is higher than that of a statute; "[t]he instructions . . . must make the relevant legal standards `manifestly apparent to the average juror.'" However, each legal principle need not be neatly summarized by a single instruction nor must the instructions quote verbatim from pattern instructions. Rather, we look to the cumulative legal accuracy and sufficiency of all the instructions given. Finally, even if an instruction is erroneous, we will not reverse unless the party asserting error meets its burden of establishing consequential prejudice. Only errors prejudicial to the outcome of the trial warrant reversal.
State v. Nguyen, 165 Wn.2d 428, 433-34, 197 P.3d 673 (2008).
Goodman v. Boeing Co., 75 Wn. App. 60, 68, 877 P.2d 703 (1994).
State v. LeFaber, 128 Wn.2d 896, 900, 913 P.2d 369 (1996) (quoting State v. Allery, 101 Wn.2d 591, 595, 682 P.2d 312 (1984)).
See State v. Brown, 132 Wn.2d 529, 605, 940 P.2d 546 (1997) (noting specific instructions not necessary when general instructions provide adequate guidance); City of Renton v. Scott Pac. Terminal, Inc., 9 Wn. App. 364, 369, 512 P.2d 1137 (1973) (finding a court's failure to give pattern instruction not error where instruction given was otherwise a correct statement of law); State v. Alexander, 7 Wn. App. 329, 336, 499 P.2d 263 (1972) (a trial court has "considerable discretion" in wording jury instructions).
State v. Peterson, 35 Wn. App. 481, 486, 667 P.2d 645 (1983) (approving jury instruction based on a subsequently clarified pattern instruction because "the instructions, when read as a whole, accurately informed the jury" of the applicable law).
Goodman, 75 Wn. App. at 68.
Peterson, 35 Wn. App. at 486.
Park contends that instruction 6 both misstated the law and misled the jury. Instruction 6 is phrased in the exact language of the relevant part of RCW 71.09.060(1). It is an accurate statement of the law. But this does not end our inquiry. The instructions must make the legal rule established by this statute manifestly apparent to the average juror.
To establish that the court's instructions fail to do so, Park focuses on the placement of the adverb "only." He asserts that it unequivocally directed the jury to consider "placement conditions and voluntary treatment options . . . if unconditionally released" to the exclusion of all other relevant evidence presented at trial when deciding whether Park was likely to reoffend if not confined to a secure facility. Noting that this directly contradicts the intent of both the pattern instruction and the statute itself, he points to the comment to the revised WPI, which states:
The original version could have been interpreted as permitting the jury to consider only placement conditions and voluntary treatment options when determining whether the respondent is likely to engage in predatory acts of sexual violence if not confined to a secure facility, even if other evidence relevant to the question has been admitted. The current instruction makes clear that the jury is not prohibited from considering such evidence when it has been admitted by the trial court.
WPI 365.14, comment (2009).
But as the State points out, the amendment was preventative. The committee's comment indicates that the instruction "could" have been misconstrued, not that the committee was taking remedial action in response to any case where it was.
Additionally, Park's suggested interpretation is neither the only nor most obvious way to read instruction 6 in the context of the instructions as a whole. The jury may have understood the adverb "only" worked with the pronoun "that" to introduce the restrictive clause "would exist for the person if unconditionally released from detention in this proceeding." In other words, "only" and "that" signaled a limitation on types of "placement conditions and voluntary treatment options" to be considered, as opposed to a blanket limitation on the entire universe of evidence jurors should consider. In this light, jurors could have understood instruction 6 as directing them to consider all evidence relevant to Park's likelihood of reoffending if not confined to a secure facility with the small exception that when they considered placement conditions and treatment options they were limited to those available to Park if released unconditionally. As illustrated by the comment to the pattern instruction amendment, this interpretation comports with the meaning intended by the state legislature.
That the jurors received an accurate statement of SVP law becomes not only plausible but highly probable when instruction 6 is read in the context of all instructions given. Instruction 1 stated, "It is your duty to decide the facts in this case based upon the evidence presented to you during this trial. . . . The evidence you are to consider during your deliberations consists of the testimony that you have heard from witnesses, and the exhibits that I have admitted, during the trial. . . . In deciding this case, you must consider all of the evidence that I have admitted." Instruction 1 continued, "Each of you must decide the case for yourself, but only after an impartial consideration of all of the evidence with your fellow jurors." The instruction concluded, "During your deliberations, you must consider the instructions as a whole." Instruction 3 set forth the State's burden of proof, explaining that a "reasonable doubt is one for which a reason exists and may arise from the evidence or lack of evidence. It is such a doubt as would exist in the mind of a reasonable person after fully, fairly, and carefully considering all of the evidence or lack of evidence." Finally, instruction 23 directed the jury to "fully and fairly" consider the evidence in light of all the instructions and explained that the jury has an opportunity to present questions to the court after reviewing the "evidence and instructions."
It should be noted that though the jury had an opportunity to seek clarification on instruction 6, no questions were submitted.
Thus, fairly interpreted, jurors obtained an accurate statement of law directing them to consider all relevant evidence for each of the three SVP elements. Only jurors' consideration of evidence of placement conditions and treatment options as they related to proof of the third element was limited by instruction 6. All other admitted evidence relevant to Park's likelihood of reoffending remained available to the jury for its consideration.
Park disagrees, asserting that the limitation in instruction 6 replaces instruction 1's broad mandate to weigh all evidence. This assertion asks us to conclude that the jury ignored not only the plain language contained in instruction 1 but also instructions 3 and 23. Park's assertion stands four-square against the long-established presumption that a jury obeys all of the trial court's directions. Because instructions 1, 3, and 23 clarify instruction 6, we are not persuaded by Park's argument.
Carnation Co., Inc. v. Hill, 115 Wn.2d 184, 187, 796 P.2d 416 (1990) ("A jury is presumed to follow the court's instructions and that presumption will prevail until it is overcome by a showing otherwise." (citing Tennant v. Roys, 44 Wn. App. 305, 315, 722 P.2d 848 (1986))).
Next, Park analogizes to cases dealing primarily with the sufficiency of self-defense jury instructions in instances of justifiable homicide. These cases do not support a ruling in Park's favor. In each instance, the threshold determination made by the reviewing court was whether the jury instruction affirmatively misstated the law and misled the jury as how to apply the law to the facts. In State v. LeFaber, our Supreme Court disapproved of an instruction stating homicide was justifiable "when the defendant reasonably believes that the person slain intends to inflict death or great personal injury and there is imminent danger of such harm being accomplished." Though the court acknowledged that it was possible to correctly interpret this instruction, it determined that the conjunction "and" compelled an impermissible interpretation as requiring a showing of actual danger. In State v. Wanrow, the court found an affirmative misstatement of the law of self-defense. The instruction directed the jury to consider only acts and circumstances occurring "at or immediately before the killing." This instruction, the court concluded, was "a patent misstatement of the law applicable to the defendant's theory of the case." Finally, in State v. Allery, the court found the instructions adequately conveyed the reasonableness standard germane to self-defense but failed to direct jurors to weigh all surrounding circumstances. Consequently, the court found that even when read as a whole, the jury received incomplete direction on the affirmative defense.
128 Wn.2d 896, 898-99, 913 P.2d 369 (1996) (emphasis added).
LeFaber, 128 Wn.2d at 902-03 (observing that the instruction at issue lacked any grammatical signal compelling a correct understanding of law over an incorrect understanding, and, as a whole, the instructions failed to provide additional guidance making the correct legal standard apparent).
88 Wn.2d 221, 559 P.2d 548 (1977).
Wanrow, 88 Wn.2d at 234; see also LeFaber, 128 Wn.2d at 900 (similarly characterized its earlier holding in Allery).
Wanrow, 88 Wn.2d at 238.
101 Wn.2d 591, 594-95, 682 P.2d 312 (1984).
This case is dissimilar to any of those upon which Park relies. Park incorrectly characterizes LeFaber as standing for the proposition that ambiguity in the grammatical structure was fatal to the outcome. Ambiguity, by itself, was not fatal in LeFaber. The flaw was that the improper placement of a conjunction affirmatively favored an alternative, erroneous, and conflicting reading. Unlike LeFaber, there is no grammatical signal in instruction 6 compelling a misleading interpretation over an accurate one; there are simply two possible constructions. Further, as explained above, other instructions strongly direct the jury to an accurate statement of law in Park's case. Wanrow provides even less support. Here, instruction 6 tracks the language of RCW 71.09.060(1) and accurately states the law. Of the cases cited, Allery is the most analogous, but even there, the court disapproved the instruction after finding that when read in context, the instructions erroneously omitted a direction to consider an essential element of law. That circumstance is not present in this case.
Further, we have affirmed verdicts based on jury instructions using outdated pattern instructions. In State v. Peterson, for example, we reasoned that in spite of a later revision, an instruction modeled on a preamendment pattern instruction still accurately informed the jury of relevant law when read in context of other instructions. This case presents a similar situation. The context of instruction 6 compels an interpretation reflecting an accurate statement of SVP law.
35 Wn. App. 481, 486, 667 P.2d 645 (1983).
Park contends that even if instruction 6 is a correct statement of the law, we should conclude that it nevertheless fails the test of instructional sufficiency. Park is correct that a court inquires whether an instruction satisfactorily allowed the parties to present their theories of the case only after the instruction is found to be a correct statement of law. Here, Park alleges he was denied an opportunity to present his theory of the case because ambiguity in instruction 6 caused the jury to disregard Park's own testimony regarding his risk of engaging in future acts of sexual violence. This argument fails.
Wanrow, 88 Wn.2d at 236-37 (stating, "the test of an instruction's sufficiency is an additional safeguard to be applied only where the instruction given is first found to be an accurate statement of the law.").
The following excerpt summarizes the character of testimony Park alleges was improperly disregarded:
Q: Do you personally believe that you committed any of the crimes or any of the offenses that the — any young girl has reported against you?
A: That's just — that's my faith. Personally I don't think I have done anything wrong.
Q: And what about any of the incidents that the adult women have reported that you've done, you've touched their breasts or touched their butt? Have you done any of those incidents?
A: Yeah. I don't remember any of those.
Q: Okay. When you say you don't remember them, could they have happened?
A: I don't think it happened.
Q: Okay. Do you think that you need sex offender treatment?
A: No.
Q: And why do you say that?
A: Sex offenders, they commit their crime with the intention. But I never had any — I never had any such intention. And I just want to get out soon.
. . . .
Q: You had mentioned a few moments ago that you didn't think you needed sex offender treatment and that that type of treatment is for a sex offender who intends to do those crimes. Do you remember talking about that?
A: So what I meant is that those person[s] who commit the sexual crimes had specific need to treat that. But myself, I have done this from the pure heart, and I don't have that intent. So that's why I said I don't think I need treatment.
First, defense counsel never argued that Park was innocent of the crimes he pleaded guilty to in 2001 or of the allegations of recent offenses upon his release in 2002. Rather, counsel conceded that "Mr. Park needs treatment. Mr. Park needs care. Mr. Park needs control." Besides, it strains credulity to believe that a rational juror would be swayed by Park's declarations alone in light of the number of victims who testified at trial and the consistency in their stories revealing a persistent pattern to Park's offending behavior.
Second, the instructions given allowed Park's counsel to fully present his defense. Counsel attacked Dr. Tucker's (the State's expert witness) diagnosis by challenging the validity of the Diagnostic and Statistical Manual as a forensic instrument, suggesting that not everything in the file reviewed by Tucker underlying the basis for his diagnosis was truthful, and argued that Park's preferences meant he was a child molester "looking for crimes of opportunity" and not a pedophile as the State had alleged. Counsel also cross-examined Tucker regarding his application of the actuarial instruments and his opinion of Park's conditions of release. In closing, Park's counsel also argued that past DOC supervision was inadequate and improved supervision would be sufficient.
Importantly, Park does not identify any argument not made that his counsel could have made had the current version of WPI 365.14 been given. Neither does he suggest how the instructions given limited his trial counsel's presentation of his theory of the case in any way.
Considering the scope of Park's attitude towards his own condition and that counsel discussed all evidence relevant to the likelihood of Park engaging in future predatory acts of sexual violence, we conclude Park was not deprived of the opportunity to present his theory of the case.
Park next alleges ambiguity in instruction 6 prevented the jury from considering the State's evidence necessary to establish the third element beyond a reasonable doubt. Specifically, Park asserts expert testimony is required to prove he is likely to reoffend if not confined to a secure facility and that instruction 6 prevented the jury from considering expert testimony on this issue thereby relieving the State of its burden of proof. Since we conclude instruction 6 adequately instructed the jury regarding its consideration of the evidence presented and Park does not challenge the sufficiency of the expert testimony that the State presented addressing Park's likelihood of reoffending, this argument fails.
Conclusion
We agree that instruction 6 was subject to more than one interpretation. We disagree with Park on whether it was an affirmative misstatement of law or fails the test of sufficiency. Instruction 6 read in the context of the trial court's other instructions made the applicable legal standard manifestly clear to an average juror. Because the same reasons that cause us to find no error under the jury instruction analysis also cause us to find no error under the "manifest error" standard, we hold that Park waived his right to challenge this issue on appeal. We affirm.
WE CONCUR.