Opinion
No. 51327-3-I.
Filed: February 9, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Skagit County. Docket No: 02-1-00240-3. Judgment or order under review. Date filed: 10/16/2002.
Counsel for Appellant(s), Washington Appellate Project, Attorney at Law, Cobb Building, 1305 4th Avenue, Ste 802, Seattle, WA 98101.
Sarah Mcneel Hrobsky, WA Appellate Project, Cobb Bldg, 1305 4th Ave Ste 802, Seattle, WA 98101-2402.
Gregory Charles Link, WA Appellate Project, Cobb Bldg., 1305 4th Ave Ste 802, Seattle, WA 98101-2402.
Thompson — Informational only (Appearing Pro Se) Doc # 799586, Monroe Cc, P.O.BOX 777, Monroe, WA 98272.
Counsel for Respondent(s), Erik Pedersen, Attorney at Law, Skagit Co Prosc Atty Ofc, 605 So. 3rd St. Mount Vernon, WA 98273-3867.
David Thompson contends the instructions in his trial for assault, unlawful possession of a firearm, violation of a no-contact order, and reckless endangerment omitted an element and inaccurately defined self-defense. Because any errors were either harmless or invited, we affirm the convictions. We remand, however, for correction of scrivener's errors on the face of the judgment and sentence.
DECISION
Thompson first contends the to-convict instruction for the charge of felony violation of a no-contact order omitted an essential element i.e., that the contact was an assault. He concedes that this element was set forth in a special verdict form. He also concedes that this court upheld an identical to-convict instruction and special verdict form in State v. Davis, 116 Wn. App. 81, 64 P.3d 661, review granted, 149 Wn.2d 1032 (2003). He argues, however, that Davis conflicts with the State Supreme Court's decision in State v. Oster, 147 Wn.2d 141, 52 P.3d 26 (2002). But we expressly considered and followed Oster's rationale in Davis. For the reasons we gave in Davis, our holding in that case does not conflict with Oster.
This issue is currently before the State Supreme Court in State v. Davis and State v. Mills, Nos. 73893-9 and 73894-7.
State v. Davis, 116 Wn. App. At 92-93.
Thompson argues in the alternative that Davis is distinguishable. The Davis court held that the to-convict instruction in that case did not purport to contain all the elements of the charged offense. Thompson contends that while the to-convict instruction in this case did not itself purport to contain all the elements of felony violation of a no-contact order, another instruction indicated that it did. But even assuming Davis is distinguishable and the to-convict instruction was flawed, any error was harmless beyond a reasonable doubt.
Instructional errors, including the omission of elements, require reversal only when they relieve the State of its burden of proving every essential element of the crime. If it appears beyond a reasonable doubt that the error did not contribute to the verdict, the error is harmless. Here, the alleged missing element was contained in a special verdict form. The jury was instructed to use the form if it found Thompson guilty under the to-convict instruction. The jury was also instructed that in order to answer `yes' on the special verdict form, they had to unanimously agree that the element was proved beyond a reasonable doubt. The State was therefore not relieved of its burden of proof, and any error was harmless beyond a reasonable doubt.
State v. DeRyke, 149 Wn.2d 906, 912, 73 P.3d 1000 (2003) (failure of to-convict instruction to specify the degree of rape attempted was harmless because another instruction did so; therefore, the State was not relieved of its burden of proof); State v. Brown, 147 Wn.2d 330, 339-41, 58 P.3d 889 (2002).
Brown, 147 Wn.2d at 332.
Thompson next challenges jury instruction 10, which defined `great bodily harm.' He contends this instruction was a comment on the evidence and `did not make manifestly apparent the subjective standard applicable to self-defense.' But Thompson proposed an identical instruction below. Under the doctrine of invited error, he cannot request an instruction and then argue on appeal that the trial court erred in giving it.
Appellant's Brief at 19.
City of Seattle v. Patu, 147 Wn.2d 717, 721, 58 P.3d 273 (2002); State v. Studd, 137 Wn.2d 533, 547, 973 P.2d 1049 (1999).
Finally, Thompson contends, and the State concedes, that the judgment contains several scrivener's errors. The judgment erroneously refers to violation of a no contact order and unlawful possession of a firearm as Counts 2 and 3 respectively, instead of Counts 3 and 2. It also incorrectly adds the firearm enhancement to Count 2 rather than to Count 1. The latter error is repeated in the warrant of commitment.
Accordingly, we affirm the convictions but remand for correction of the scrivener's errors in the judgment and sentence.
COLEMAN and AGID, JJ., concur.