State Of Washington v. Jaime Kristin Schultz

IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

STATE OF WASHINGTON,                               No. 79869-3-I

                       Respondent,                 DIVISION ONE
        v.
                                                   UNPUBLISHED OPINION
 JAIME KRISTIN SCHULTZ,

                       Appellant.


       LEACH, J. — Jaime Schultz appeals her conviction for one count of criminal

trespass in the second degree and the imposition of discretionary community

custody fees. Schultz argues the jury instructions misstated the law, confused the

jury, and impermissibly reduced the State’s burden of proof.             We agree the

instructions did not accurately describe the State’s burden of proof. We reverse

and remand for a new trial. Schultz also argues, and the State concedes, the trial

court should not have imposed community custody fees. We agree and remand

to strike the community custody fees.

                                    BACKGROUND

       On March 31, 2017, Mary Land saw Jaime Schultz walking around and

looking at houses in her North Seattle neighborhood. Land saw Schultz walk on

to Susannah Everlund’s property while looking through the house’s basement

windows. Everlund’s house had a “for sale” sign in the yard, but she still occupied

the house. Land thought Schultz could be looking to steal packages from her

  Citations and pin cites are based on the Westlaw online version of the cited material.
79869-3-I/2



neighbor’s front doors and called 911. Land told the dispatcher that Schultz had

looked on porches and in windows, but she had not tried to open the doors.

       Everlund was driving home from an outing while Land was on the phone

with the dispatcher. Land flagged Everlund down and said, “There’s a woman

prowling in your backyard. And I watched her. I just called 911.”

       Everlund got out of her car, looked down the side of her house, and saw

Schultz walking toward her from behind the house. Everlund asked Schultz if she

could help her. Schultz responded, “I’m just looking at the house.” Everlund said,

“we don’t have any open house today.” Then, Schultz started to walk away from

the house and proceeded down the street.

       Seattle Police officers arrived at Everlund’s house. Everlund and Land

pointed the officers in Schultz’s direction. The officers “immediately detained”

Schultz and “she was very cooperative.” Schultz told the officers she was looking

at the house because it was for sale and denied any intent to break into it. The

officers arrested Schultz for criminal trespass.

       Land testified that it was reasonable for people to look at houses for sale

and to grab fliers. She said that while most people would not look inside a home

for sale, because that would be intrusive, some people might take a quick look

inside a window.

       Everlund testified that no one else had entered her property while it was for

sale. Everlund agreed there was no sign that Schultz damaged or tampered with

the house. No one testified that Schultz attempted to break into the house.


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79869-3-I/3



       The jury found Schultz guilty on all four counts of second degree identity

theft unrelated to the trespass charge and one count of second degree criminal

trespass. At a bench trial, the court found Schultz guilty of two counts of bail

jumping.

       Schultz appeals her conviction of criminal trespass and the imposition of

discretionary community custody fees.

                                      ANALYSIS

Instructional Error

       Schultz contends the jury instructions relating to the criminal trespass

charge were confusing and it also misstated the legal standard.           The State

responds that because defense counsel did not object to the challenged jury

instructions at trial, this court should not consider her claims. RAP 2.5(a) provides

that we “may refuse to review any claim of error which was not raised in the trial

court,” unless the appellant can show there is an error and that error is a “manifest

error affecting a constitutional right.”1 Because Schultz did not object to the jury

instructions,2 we must determine whether Schultz’s instruction claims involve a

“manifest error affecting a constitutional right.”3

       We do not “assume the alleged error is of constitutional magnitude.”4 The

appellant must identify a constitutional error and show how that error affected their

       1
         State v. O’Hara, 

167 Wash. 2d 91

, 98, 

217 P.3d 756

(2009).
       2
         The State asserts Schultz’s counsel objected to the middle paragraph of
Jury Instruction Number 8, but the record shows it was the State that objected to
the middle paragraph.
       3
         RAP 2.5(a)(3); 

O’Hara, 167 Wash. 2d at 98

.
       4
         

O’Hara, 167 Wash. 2d at 98

-99.


                                           3
79869-3-I/4



rights.5 “To satisfy the constitutional demands of a fair trial, the jury instructions,

when read as a whole, must correctly tell the jury of the applicable law, not be

misleading, and permit the defendant to present his theory of the case.”6 “Failure

to properly instruct the jury on an element of a charged crime is an error of

constitutional magnitude which may be raised for the first time on appeal.”7 But, if

“the instructions properly inform the jury of the elements of the charged crime, any

error in further defining terms used in the elements is not of constitutional

magnitude.”8

       If an appellant shows that an error of constitutional magnitude occurred, we

next determine whether the error was manifest, which requires a showing of actual

prejudice.9    To do this, the appellant must show the error had practical and

identifiable consequences at trial.10 To determine whether the consequences are

practical and identifiable, we place ourselves “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.”11

       If we determine an error is manifest, we conduct a harmless error analysis. 12

“[T]he exception does not help a defendant when the asserted constitutional error

       5
         State v. Gordon, 

172 Wash. 2d 671

, 676, 

260 P.3d 884

(2011).
       6
         

O’Hara, 167 Wash. 2d at 105

(citing State v. Mills, 

154 Wash. 2d 1

, 7, 

109 P.3d 415

(2005)).
       7
         State v. Roggenkamp, 

153 Wash. 2d 614

, 620, 

106 P.3d 196

(2005) (citing
State v. Stein, 

144 Wash. 2d 236

, 241, 

27 P.3d 184

(2001)).
       8
         State v. Stearns, 

119 Wash. 2d 247

, 250, 

830 P.2d 355

(1992).
       9
         

O’Hara, 167 Wash. 2d at 99

.
       10
          

Gordon, 172 Wash. 2d at 676

.
       11
          

O’Hara, 167 Wash. 2d at 100

.
       12
          

O’Hara, 167 Wash. 2d at 105

; U.S. CONST. amend. XIV; Const. art. I, § 22.


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79869-3-I/5



is harmless beyond a reasonable doubt.”13 In a criminal case, an appellate court

presumes a constitutional error prejudiced the defendant and the prosecution has

the burden of showing that the constitutional error was harmless.14

       Two cases illustrate application of the harmless error rule. In State v.

O’Hara, the Washington Supreme Court determined the trial court’s failure to

include the entire statutory definition of malice in the jury instruction was not a

manifest error affecting a constitutional right because the State was not relieved of

its burden of proving the elements of the crime and disproving the elements of the

defense.15

       In State v. Ackerman, the petitioner alleged “the jury instructions potentially

diluted the State’s burden by incorrectly conveying the elements of self-defense.” 16

We determined this was an error affecting a constitutional right.17         We also

determined the petitioner had shown the error had a practical and identifiable

consequence on the jury’s deliberations, so it was a manifest error affecting a

constitutional right that was reviewable despite being raised for the first time on

appeal.18 Because the instructions did not make the defense manifestly apparent

to the jury, we could not find the error harmless. 19




       13
          Salas, 

127 Wash. 2d 173

, 182, 

897 P.2d 1246

(1995).
       14
          State v. Coristine, 

177 Wash. 2d 370

, 380, 

300 P.3d 400

(2013).
       15
          

O’Hara, 167 Wash. 2d at 104-108

.
       16
          

11 Wash. App. 2d

304, 310, 

453 P.3d 749

(2019).
       17
          Ackerman, 

11 Wash. App. 2d

at 309.
       18
          Ackerman, 

11 Wash. App. 2d

at 309.
       19
          Ackerman, 

11 Wash. App. 2d

at 314.


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79869-3-I/6



       RCW 9A.52.080(1) provides “A person is guilty of criminal trespass in the

second degree if he or she knowingly enters or remains unlawfully in or upon

premises of another.” RCW 9A.52.090(3) provides a defense to criminal trespass

where “[t]he actor reasonably believed that the owner of the premises, or other

person empowered to license access thereto, would have licensed him or her to

enter or remain.” When a defendant asserts their entry was permissible under

RCW 9A.52.090(3), the State has the burden of proving beyond a reasonable

doubt the defendant lacked a license to enter because this defense negates an

element of the crime of trespass.20

       Jury instruction number 18 told the jury what it must find to convict Schultz

of criminal trespass.    But, no instruction told the jury about the “reasonably

believed” statutory defense. And, no instruction told the jury of the State’s burden

to disprove this defense. Because the instructions relieved the State of its burden

of disproving the statutory defense, this instructional error is a manifest error

affecting a constitutional right that Schultz may raise for the first time on appeal.

       Next, we consider whether under a harmless error analysis, the instructional

error was harmful and prejudicial. We find that it was.

       “In order to hold that a jury instruction error was harmless, ‘we must

conclude beyond a reasonable doubt that the jury verdict would have been the




       20
          City of Bremerton v. Widell, 

146 Wash. 2d 561

, 570, 

51 P.3d 561

(2002);
State v. R.H., 

86 Wash. App. 807

, 812, 

939 P.2d 217

(1997).


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79869-3-I/7



same absent the error.’”21 “An error in jury instructions is presumed prejudicial

unless it affirmatively appears to be harmless.” 22 The State bears the burden of

demonstrating harmlessness.23

       The State does not explain why the evidence of the for sale sign does not

provide some evidence Schultz “reasonably believed” she was or would be

licensed to be on the property. Nor does the State address Land’s testimony that

sometimes people peer into windows of homes that are for sale. And, the State

does not address Everlund and the officer’s testimony that Schultz said she was

only looking at the house because it was for sale. The State contends Schultz

could not possibly believe she was invited or licensed to enter Everlund’s property,

and ignores the “otherwise privileged to so enter or remain” prong of the jury

instruction.

       The evidence we have cited, with a proper instruction about the State’s

burden, could cause a reasonable juror to entertain doubt about whether Schultz

could have reasonably believed she was otherwise privileged to enter Everlund’s

property. So, the State has not shown beyond a reasonable doubt the instructional

error was harmless. We reverse and remand for a new trial.




       21
           State v. Bashaw, 

169 Wash. 2d 133

, 146, 

234 P.3d 195

(2010), overruled
on other grounds by State v. Guzman Nunez, 

174 Wash. 2d 707

, 

285 P.3d 21

(2012)
(citations omitted).
        22
           State v. Espinosa, 

8 Wash. App. 2d

363, 363, 

438 P.3d 582

(2019) (citing
State v. Clausing, 

147 Wash. 2d 620

, 628, 

56 P.3d 550

(2002)).
        23
           State v. Barry, 

183 Wash. 2d 297

, 303, 

352 P.3d 161

(2015) (citing State v.
Coristine, 

177 Wash. 2d 370

, 380, 

300 P.3d 400

(2013)).


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79869-3-I/8



       Because we reverse and remand, we decline to address Schultz’s other

claims of instructional error.

Discretionary Costs

       Schultz contends, and the State concedes, the trial court improperly

imposed supervision fees because she is indigent. RCW 9.94A.703(2) states the

supervision fees are “waivable conditions.” The trial court stated it was imposing

the mandatory $500 victim penalty assessment and $100 DNA collection fee. But,

the judgment and sentence included the requirement that Schultz pay supervision

fees. So, we accept the State’s concession and remand to strike the supervision

fees from the judgment and sentence.

                                 CONCLUSION

       We reverse and remand on the issue of criminal trespass because we

cannot say that beyond a reasonable doubt the jury verdict would have been the

same absent the instructional error. And, we remand to strike the community

custody fees.




WE CONCUR:




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