STATE OF WASHINGTON v. CHADWICK LEONARD

On October, 28, 2011, Krista! Strong had a birthday party for her son at their

State v. Kalebaugh, No. 89971-1

Napavine home. Strong and her children lived there with several other individuals,

including Tiffany S., Tiffany's two sons, and Kalebaugh. Tiffany's six-year-old

daughter H.S., who typically lived with her grandparents, was also staying at the

house that day. The party ended sometime in the evening, and Tiffany put her three

children down to sleep in the living room. The two boys settled in on a couch and

H.S. on an adjacent love seat. The adults then retreated to the garage.

Jacob Murphy, a friend who had come over earlier to join the gathering in the

garage, stayed overnight. Murphy slept in the same room on the couch opposite

H.S.'s love seat. During the night, Murphy saw Kalebaugh lay next to the love seat,

reach his hand under the blanket covering H.S., and make a rubbing motion in the

area between her knees and her belly button. Murphy confronted Kalebaugh and

alerted Tiffany, who found the girl's shorts bunched up so that her underwear was

exposed. Kalebaugh was charged with first degree child molestation, though he

denied touching the girl, and the case proceeded to trial.

On the first day of trial, a panel of potential jurors were brought into the

courtroom to begin jury selection. The presiding judge introduced himself and made

some preliminary remarks about the trial process and what jurors might expect. The

judge read the charge against Kalebaugh and explained how evidence would be

presented during trial. The judge further advised prospective jurors that Kalebaugh

was presumed innocent and that the State had the burden of proving each and every

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element beyond a reasonable doubt. The judge also read the pattern instruction on

reasonable doubt, including:

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. If after such consideration you have an abiding belief in the truth of the charge, you are satisfied beyond a reasonable doubt.

Verbatim Report of Proceedings (Jan. 3, 2012) (VRP) at 9; cf. 11 WASHINGTON

PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRlMINAL 4.01, at 85 (3d

ed. 2008) (WPIC). The judge then continued:

If after your deliberations you do not have a doubt for which a reason can be given as to the defendant's guilt, then, you are satisfied beyond a reasonable doubt. On the other hand, if after your deliberations you do have a doubt for which a reason can be given as to the defendant's guilt, then, you are not satisfied beyond a reasonable doubt.

VRP at 9. Kalebaugh did not object to any of these remarks. After two hours of

voir dire, a 12 person jury (plus one alternate) was sworn and empaneled to hear the

case.

The judge then read to the jury what he called "preliminary instructions,"

which included another explanation that it was the State that bore the burden of

proof. He twice told jurors that he would instruct them on the law at the end of the

case and would require the jury to follow those instructions. The judge concluded

by admonishing jury members to keep their minds open and not to decide any issue

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in the case until they heard all the evidence. The jury subsequently heard testimony

for the next two days.

At the close of evidence, the trial judge orally instructed the jury on the law

and provided them with several written copies of the court's instructions. These final

instructions were unremarkable in that they were the relevant Washington pattern

jury instructions. They included instructions to follow the law as given, to presume

Kalebaugh innocent, and to acquit if a reasonable doubt existed as to any element of

the crime. More importantly and relevant to our review, the court's instructions

included the complete and proper version of WPIC 4.01, the instruction on

reasonable doubt. The jury deliberated six hours and returned a guilty verdict.

Kalebaugh challenged the trial judge's opening remark for the first time on

appeal, arguing the comment deprived him of a fair trial. In a split decision, the Court

of Appeals held the error was not reviewable because Kalebaugh failed to object at

trial and affirmed the conviction. State v. Kalebaugh, 179 Wn. App. 414, 420, 318

P.3d 288 (2014). We granted review. State v. Kalebaugh, 180 Wn.2d 1013, 327 P.3d

54 (2014).

ANALYSIS

An established rule of appellate review in Washington is that a party generally

waives the right to appeal an error unless there is an objection at trial. RAP 2.5(a).

Although this rule insulates some errors from review, it encourages parties to make

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timely objections, gives the trial judge an opportunity to address an issue before it

becomes an error on appeal, and promotes the important policies of economy and

finality. State v. O'Hara, 167 Wn.2d 91, 98, 217 P.3d 756 (2009).

But as with many general rules, there are exceptions, and we will review some

errors even without an objection below. One exception is for "manifest error[s]

affecting a constitutional right." RAP 2.5(a)(3). This exception strikes a careful

policy balance. On the one hand, a procedural rule should not prevent an appellate

court from remedying errors that result in serious injustice to an accused. At the

same time, if applied too broadly RAP 2.5(a)(3) will devalue objections at trial and

deprive judges of the opportunity to correct errors as they happen. State v. Scott, 110

Wn.2d 682, 686-87, 757 P.2d 492 (1988).

So before we review the merits of an unpreserved error under RAP 2.5(a)(3),

we ask two questions: ( 1) Has the party claiming error shown the error is truly of a

constitutional magnitude, and if so, (2) has the party demonstrated that the error is

manifest? O'Hara, 167 Wn.2d at 98. These gatekeeping questions open meritorious

constitutional claims to review without treating RAP 2.5(a)(3) as a method to secure

a new trial every time any error is overlooked. State v. Lamar, 180 Wn.2d 576, 582,

327 P.3d 46 (2014) (citing State v. McFarland, 127 Wn.2d 322, 333, 899 P.2d 1251

(1995)).

Kalebaugh meets the first part of the RAP 2.5(a)(3) analysis, as his asserted

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error clearly implicates a constitutional interest. The presumption of innocence "is

the bedrock upon which the criminal justice system stands." State v. Bennett, 161

Wn.2d 303, 315, 165 P.3d 1241 (2007). Instructions that misstate reasonable doubt

or shift the burden of proof to the defendant are constitutional errors. State v.

McCullum, 98 Wn.2d 484, 488, 656 P.2d 1064 (1983). The error arises from the

fundamental constitutional due process requirement that the State bear the burden of

proving every element of a crime beyond a reasonable doubt. State v. Camara, 113

Wn.2d 631, 640, 781 P.2d 483 (1989); CoNST. amend. XIV. The State does not

dispute that the judge's remarks are of constitutional magnitude.

Kalebaugh also meets the second part of the RAP 2.5(a)(3) because the

asserted error is manifest from the record. In 0 'Hara we held that under RAP

2.5(a)(3), manifestness "'requires a showing of actual prejudice."' 167 Wn.2d at 99

(quoting State v. Kirkman, 159 Wn.2d 918, 935, 155 P.3d 125 (2007)). "To

demonstrate actual prejudice, there must be a 'plausible showing by the [appellant]

that the asserted error had practical and identifiable consequences in the trial of the

case."' !d. (alteration in original) (internal quotation marks omitted) (quoting

Kirkman, 159 Wn.2d at 935). Next, "to determine whether an error is practical and

identifiable, the appellate court must place itself in the shoes of the trial court to

ascertain whether, given what the trial court knew at that time, the court could have

corrected the error." !d. at 100. The trial judge instructed that a "reasonable doubt"

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is a doubt for which a reason can be given, rather than the correct jury instruction

that a "reasonable doubt" is a doubt for which a reason exists. WPIC 4.01, at 85.

The jury instruction given was a misstatement of the law that the trial court should

have known, and the mistake is manifest from the record. Thus, Kalebaugh's claim

is a manifest constitutional error and can be raised for the first time on appeal.

While the judge gave an erroneous instruction, the error was harmless because

it did not lower the State's burden of proof or affect the outcome of the trial.

Harmless error analysis occurs after the court determines the error is a manifest

constitutional error and is a separate inquiry. O'Hara, 167 Wn.2d at 99. The judge

gave the proper instruction from WPIC 4.01 in his preliminary remarks to

prospective jurors before jury selection. He followed the instruction by attempting

to further explain reasonable doubt, paraphrasing WPIC 4.01 's "a doubt for which a

reason exists" as "a doubt for which a reason can be given." VRP at 9 (emphasis

added). Kalebaugh is correct that the law does not require that a reason be given for

a juror's doubt, and we have previously acknowledged that reasonable doubt is a

difficult concept that can challenge lawyers and jurors alike. See, e.g., Bennett, 161

Wn.2d at 316-17 (rejecting the common law Castle instruction on reasonable doubt

(citing State v. Castle, 86 Wn. App. 48, 935 P.2d 656 (1997)). Nevertheless,

Kalebaugh conceded at oral argument that the judge's remark "could live quite

comfortably" with the final instructions given here and could have been cured with

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an additional instruction that jurors did not need to articulate a reason for their doubt.

Wash. Supreme Court oral argument, State v. Kalebaugh, No. 89971-1 (Sept. 18,

2014), at 37 min., 43 sec., audio recording by TVW, Washington State's Public

Affairs Network, available at http://www.tvw.org. We do not agree that the judge's

effort to explain reasonable doubt was a directive to convict unless a reason was

given or akin to the "fill in the blank" approach that we held improper in State v.

Emery, 174 Wn.2d 741, 759, 278 P.3d 653 (2012).

Kalebaugh also suggests the timing of the remark makes it reversible error,

since jurors "must have had [the remark] in mind while listening to evidence" and

"had no reason to disregard it when it came time to deliberate." Pet. for Review at

8. Even accepting Kalebaugh's first premise-that jurors parsed out a comment

about the intricate concept of reasonable doubt and remembered it verbatim through

two days of testimony-the jury had ample reason to disregard it before

deliberations.

The trial judge properly instructed the potential jurors before these offending

remarks, gave clear preliminary instructions after voir dire when the potential jurors

became actual jurors, reviewed the presumption of innocence and the State's burden,

and told the jury twice that they would receive written instructions at the end of the

case. Most importantly, at the end of the case the jurors were provided with the

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correct legal instruction on reasonable doubt and paper copies of such instructions

were available to the jury during deliberations.

We disfavor the judge's offhand explanation of reasonable doubt at the

beginning of this case and any subtle suggestion that a reason must be given to doubt

a defendant's guilt. But we do not find it plausible to believe that the jury retained

these particular oral remarks made before jury selection three days earlier, ignored

the other oral and written instructions, and applied the incorrect legal standard.

Jurors are presumed to follow the court's instructions, State v. Grisby, 97 Wn.2d

493, 499, 647 P.2d 6 (1982) (citing State v. Kroll, 87 Wn.2d 829, 558 P.2d 173

(1976)), and Kalebaugh does not provide any facts to rebut this presumption. The

judge's correct instructions given throughout the case cured any potential prejudice

that could have possibly arisen. Therefore, the judge's remark was harmless beyond

a reasonable doubt.

We affirm the conviction.