IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
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Respondent, 1 **-*
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MAX ORTIZ-TRIANA, **
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Appellant. FILED: May 9, 2016
Schindler, J. — A jury found Max Ortiz-Triana guilty of rape in the second
degree. Ortiz-Triana appealed, arguing the trial court erred in giving the State's
proposed jury instruction on consent and refusing to give the defense jury instruction
clarifying the relationship between the defense of consent and the burden of the State to
prove forcible compulsion. Relying on Supreme Court precedent, State v. Camara. 113
Wn.2d631.781 P.2d 483 (1989). and State v. Gregory. 158Wn.2d759, 147 P.3d 1201
(2006), we affirmed.1 State v. Ortiz-Triana. 169 Wn. App. 1026, 2012 WL 2989603, at
*3-*4. In State v.W.R.. 181 Wn.2d 757, 770-71, 336 P.3d 1134 (2014), our Supreme
Court held that because consent negates the element of forcible compulsion, shifting
the burden to the defendant to prove consent violates due process, and overruled
1We also rejected the argument that the trial court erred in failing to give a unanimity instruction
and refusing to instruct the jury on the lesser degree offense of rape in the third degree. State v. Ortiz-
Triana. 169 Wn. App. 1026, 2012 WL 2989603, at *5.
No. 67039-5-1/2
Camara and Gregory. The court granted the petition for review as to the consent
instruction and remanded for reconsideration in light of W.R. State v. Ortiz-Triana, 182
Wn.2d 1022, 349 P.3d 819 (2015). On remand, Ortiz-Triana contends he is entitled to
reversal because the consent instruction violated his right to due process. The State
asserts the doctrine of invited error precludes his challenge to the jury instruction. In the
alternative, the State argues the error was harmless. We hold the invited error doctrine
does not preclude review and the error was not harmless. We reverse the conviction of
rape in the second degree and remand for a new trial.
The facts are set forth in detail in the prior opinion. Ortiz-Triana, 2012 WL
2989603, at *1. The State charged Ortiz-Triana with one count of rape of M.P. in the
first degree with a deadly weapon and one count of child molestation of M.P. in the third
degree. Ortiz-Triana initially denied having sexual contact with M.P.
At trial, M.P. testified Ortiz-Triana raped her over the course of several hours.
M.P. said that during the rape, Ortiz-Triana held a kitchen knife and threatened to kill
her. Ortiz-Triana admitted having sexual intercourse with M.P. but testified itwas
consensual. Ortiz-Triana denied displaying a knife or threatening M.P.
The State proposed an instruction on the defense of consent based on former 11
Washington Practice: Washington Pattern Jury Instructions: Criminal (WPIC) 18.25, at
288 (3d ed. 2008). Former WPIC 18.25 states the defendant bears the burden of
proving the defense of consent by a preponderance of the evidence, and if "the
defendant has established this defense, it will be your duty to return a verdict of not
No. 67039-5-1/3
guilty."2
Defense counsel objected to giving the proposed jury instruction on consent.
The attorney argued former WPIC 18.25 did not adequately describe the relationship
between the defense of consent and the burden of the State to prove forcible
compulsion beyond a reasonable doubt.
So the obvious concern is, from the Defense perspective, the way
the instruction is written is that it confuses the jury into believing that the
State does not have a burden or the Defendant has some sort of burden
regarding forcible compulsion, which he does not.
The defense proposed an alternative jury instruction. The proposed alternative
instruction clarified that even if the defendant did not prove consent, the jury could still
consider evidence of consent in determining whether the State proved forcible
compulsion beyond a reasonable doubt.
[T]he reason I propose [the instruction]... is to make sure that the jury
understands that they can also consider the consent and as far as dealing
with forcible compulsion, the State is not relieved of that burden.
The State acknowledged the defense proposed instruction "is an accurate
reflection of the law." But the prosecutor argued the instruction was not necessary and
deferred to the trial court.
The trial court refused to give the defense proposed instruction on consent. The
court concluded the instruction was unnecessary and confusing, "It seems to me that
2 Former WPIC 18.25 states, in pertinent part:
A person is not guilty of [rape]... if the [sexual intercourse]... is consensual.
Consent means that at the time of the act of [sexual intercourse]... there are actual
words or conduct indicating freely given agreement to have [sexual intercourse]....
The defendant has the burden of proving that the [sexual intercourse]. . . was
consensual by a preponderance of the evidence. Preponderance of the evidence means
that you must be persuaded, considering all of the evidence in the case, that it is more
probably true than not true. If vou find that the defendant has established this defense, it
will be your duty to return a verdict of not guilty fas to this charge],
(Emphasis added.)
No. 67039-5-1/4
the WPIC instruction is simpler for the jury." The court instructed the jury on consent
using the instruction proposed by the State.
Jury instruction 14 states:
A person is not guilty of rape if the sexual intercourse is
consensual. Consent means that at the time of the act of sexual
intercourse there are actual words or conduct indicating freely given
agreement to have sexual intercourse.
The defendant has the burden of proving this defense by a
preponderance ofthe evidence. Preponderance ofthe evidence means
that you must be persuaded, considering all the evidence in the case, that
it is more probably true than not true. If you find that the defendant has
established this defense, it will be your duty to return a verdict of not guilty
as to this charge.
The jury found Ortiz-Triana guilty of the lesser degree offense of rape in the
second degree and not guilty of child molestation in the third degree.
On appeal, Ortiz-Triana argued the trial court erred in refusing to give his
proposed alternative jury instruction on consent that clarified the defense of consent and
the State's burden to prove forcible compulsion beyond a reasonable doubt. Relying on
Camara and Gregory, we affirmed. Ortiz-Triana, 2012 WL 2989603, at *3-*4.
In Camara, the Washington Supreme Court held that "while there is a conceptual
overlap between the consent defense to rape and the rape crime's element of forcible
compulsion," placing the burden on the defendant to prove consent by a preponderance
ofthe evidence did not violate due process. Camara, 113 Wn.2d at 640. In Gregory,
the court expressly declined to overrule Camara and reaffirmed that "due process
permits an instruction requiring the defendant to prove consent." Gregory, 158 Wn.2d
at 802-03.
Ortiz-Triana filed a petition for review. The Washington Supreme Court stayed
the petition pending a decision in W.R.
No. 67039-5-1/5
The Due Process Clause "protects the accused against conviction except upon
proof beyond a reasonable doubt of every fact necessary to constitute the crime with
which he is charged." In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d
368 (1970); U.S. Const, amend. XIV, § 1 ("No state shall. .. deprive any person of life,
liberty, or property, without due process of law.").
In Smith v. United States. U.S. , 133 S. Ct. 714, 184 L. Ed. 2d 570
(2013), the Court clarified that due process prohibits the State from shifting the burden
of proof to the defendant when an affirmative defense negates an element of the crime
charged. The Court held the burden of proving withdrawal from a criminal conspiracy
"rested firmly on the defendant" because the defense did not controvert any of the
elements of the offense itself. Smith, 133 S. Ct. at 718-19.
In W.R., the court reexamined the relationship between the defense of consent3
and whether placing the burden of proving consent on the defendant violates due
process. The court held consent negates the forcible compulsion element of rape as
defined in RCW 9A.44.010(6). W.R.. 181 Wn.2d at 765. RCW 9A.44.010(6) defines
"forcible compulsion" to mean "physical force which overcomes resistance, or a threat,
express or implied, that places a person in fear of death or physical injury to herself or
himself or another person, or in fear that she or he or another person will be kidnapped."
[FJorcible compulsion contemplates force that overcomes actual
resistance or threats that place a person in actual fear. There can be no
forcible compulsion when the victim consents, as there is no resistance to
3 RCW 9A.44.010(7) defines "consent" to mean that "at the time of the act of sexual intercourse
or sexual contact there are actual words or conduct indicating freely given agreement to have sexual
intercourse or sexual contact."
No. 67039-5-1/6
overcome. Nor is there actual fear of death, physical injury, or kidnapping
when the victim consents.
W.R.. 181 Wn.2dat765.
The court held that because consent negates the element of forcible compulsion,
shifting the burden to the defendant to prove consent violates due process. W.R., 181
Wn.2d at 765. "[W]hen a defense necessarily negates an element of the crime, it
violates due process to place the burden of proof on the defendant." W.R., 181 Wn.2d
at 765. The court made clear that "[wjhile the defendant may be tasked with producing
evidence to put consent in issue, such evidence need only create reasonable doubt as
to the victim's consent." W.R., 181 Wn.2d at 768. The court overruled the decision in
Camara and Gregory that consent does not negate forcible compulsion and that the
defendant must prove consent by a preponderance of the evidence. W.R., 181 Wn.2d
at 771.
The Washington Supreme Court granted the petition for review and remanded for
reconsideration in light ofW.R. Ortiz-Triana, 182 Wn.2d at 1022. On remand, the State
concedes the jury instruction violated due process by requiring Ortiz-Triana to prove
consent by a preponderance of the evidence. However, the State maintains we may
not review the erroneous instruction because Ortiz-Triana invited the error. In the
alternative, the State argues the error was harmless.
Invited Error
The doctrine of invited error is well established in Washington. State v. McNeil,
161 Wash. 221, 223, 296 P. 555 (1931).
Generally speaking, no rule of law is better established than the rule that a
party will not be heard to complain of an error which he induced the trial
court to commit. Our own reports are replete with cases where the rule
No. 67039-5-1/7
has been applied; so numerous, in fact, are the cases that no specific
reference need be made to them.
McNeil, 161 Wash, at 223.
Under the invited error doctrine, a defendant "may not request an instruction and
later complain on appeal that the requested instruction was given." State v. Henderson.
114 Wn.2d 867, 870, 792 P.2d 514 (1990)4 (quoting State v. Bover, 91 Wn.2d 342, 345,
588 P.2d 1151 (1979)). The invited error doctrine is strictlyenforced to prevent "parties
from benefiting from an error they caused at trial regardless of whether it was done
intentionally or unintentionally." State v. Recuenco. 154Wn.2d 156, 163, 110 P.3d 188
(2005). rev'd on other grounds by Washington v. Recuenco, 548 U.S. 212, 126 S. Ct.
2546, 165 L. Ed. 2d 466 (2006). The doctrine applies to errors of constitutional
magnitude. Recuenco, 154 Wn.2d at 163: see also In re Pers. Restraint of Griffith. 102
Wn.2d 100, 101-02, 683 P.2d 194 (1984); Bover, 91 Wn.2d at 344-45.
In Henderson, the trial court gave the defense proposed WPIC instructions
defining burglary. Henderson, 114 Wn.2d at 868. The instructions did not identify the
intended crime. Henderson, 114 Wn.2d at 869; see State v. Bergeron, 105Wn.2d 1,
16, 711 P.2d 1000 (1985) (instructions in burglary prosecution need not specify the
intended crime). For the first time on appeal, the defendant argued the trial courterred
by not instructing the jury on the intended crime based on case law at the time the
defendant committed the offense. Henderson, 114 Wn.2d at 869; see State v. Johnson,
100 Wn.2d 607, 625, 674 P.2d 145 (1983) (instructions in burglary prosecution must
specify and define the crimes intended). Our Supreme Court held the alleged error fell
squarely within the invited errordoctrine and precluded review. Henderson, 114Wn.2d
Emphasis omitted.
No. 67039-5-1/8
at 868. "[Ejven if error was committed, of whatever kind, it was at the defendant's
invitation and he is therefore precluded from claiming on appeal that it is reversible
error." Henderson, 114 Wn.2d at 870.
Despite generally applying the invited error rule strictly, our Supreme Court has
recognized an exception. The court has declined to apply the invited error doctrine
where the defendant proposed an erroneous instruction but also proposed an
instruction that attempted to remedy or mitigate the error.
In State v. Studd. 137 Wn.2d 533, 538, 973 P.2d 1049 (1999), the court
considered six consolidated appeals challenging jury instructions on the law of self-
defense. In each case, the defendant challenged giving an instruction based on former
WPIC 16.01. WPIC 16.01, at 172 (2d ed. 1994). The former WPIC erroneously did not
clarify that "a defendant need not be in actual danger of imminent harm in order to act in
self-defense against a perceived aggressor, provided the defendant reasonably
believes himself to be in danger." Studd, 137 Wn.2d at 538. Although the error was of
constitutional magnitude and presumed prejudicial, the court held the defendants who
proposed the erroneous instruction without attempting to add a remedial instruction had
invited the error. Studd, 137 Wn.2d at 546-47.
By contrast, the court held the invited error doctrine did not preclude review for
the defendants who requested the erroneous instruction but attempted to remedy or
clarify the deficient WPIC instruction. Studd, 137 Wn.2d at 552.
The fact that [the defendant] proposed much the same instruction is no
bar to his challenge to it, for he also proposed a curative instruction that
was not given and, thus, did not invite the error that he complains of now.
The trial court in [the defendant's] case gave WPIC 16.02 verbatim
to the jury, consistent with [the defendant's] request. [The defendant] had,
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No. 67039-5-1/9
however, additionally requested an instruction identical to WPIC 16.07 as
a curative instruction, and the trial court rejected that request. Thus the
ambiguous language of WPIC 16.02 was unmitigated, and the jury might
have understood a self-defense claim to require a showing that actual
harm was imminent. Because the fatal ambiguity resulted from the State's
successful objection to the clarifying instruction that [the defendant]
proposed, [the defendant] cannot be said to have invited the error he
complains of.
Studd, 137Wn.2dat552.5
Here, the State argues the invited error doctrine precludes review because the
proposed defense consent instruction contained the same erroneous burden of proof.
The State's argument ignores the language of the defendant's proposed instruction that
attempts to clarify the burden of proof.
The State proposed a consent jury instruction based on former WPIC 18.25.
Defense counsel objected to using former WPIC 18.25 and proposed an instruction that
attempted to clarify the relationship between the consent defense and the State's
burden of proving forcible compulsion within the constraints of Camara and Gregory.
The proposed defense instruction on consent erroneously placed the burden of
proofon the defendant, but as the defense attorney explained, the instruction would
clarify that even if Ortiz-Triana failed to prove consent by a preponderance of the
evidence, the jury could still consider evidence of consent in determining whether the
State proved beyond a reasonable doubt that Ortiz-Triana acted with forcible
compulsion.
[T]he obvious concern is, from the Defense perspective, the way the
instruction is written is that it confuses the jury into believing that the State
does not have a burden or the Defendant has some sort of burden
regarding forcible compulsion, which he does not. He does have a burden
under the case law — as strongly as I may disagree with the case law, the
5 Internal quotation marks and citation omitted.
No. 67039-5-1/10
case law does say the preponderance of the evidence is on the Defendant
to establish the defense of consent.
However, the reason I propose [the alternative instruction] — and
it's quoted directly out of State v. Gregory, or at least the way I drafted it is
very, very close to State v. Gregory, the portion that I read — is to make
sure that the jury understands that they can also consider the consent and
as far as dealing with forcible compulsion, the State is not relieved of that
burden.
The proposed alternative instruction states:
Consent is an affirmative defense to the crime of rape and the
defense bears the burden of proving consent by a preponderance of the
evidence. Even if. however, you do not find consent established by a
preponderance of the evidence, vou may still consider evidence of
consent in determining whether or not the defendant acted with forcible
compulsion and if vou find that there is sufficient evidence to raise a
reasonable doubt as to that element, vou must acguit the defendant of the
charge of rape in the first degree.®
The underlined clarifying portion of the defense proposed instruction is consistent with
the decision in W.R. that "[wjhile the defendant may be tasked with producing evidence
to put consent in issue, such evidence need only create reasonable doubt as to the
victim's consent." W.R., 181 Wn.2d at 768.
The record also clearly establishes defense counsel could have done nothing to
prevent the trial court from instructing the jury on the consent burden of proof using the
State's proposed WPIC instruction. Cf. State v. Vander Houwen, 163Wn.2d 25, 37,
177 P.3d 93 (2008) (invited errordoctrine did not bar review where trial court refused
defendant's original proposed instructions and defendant "was faced with either
submitting the case to the jury with no justification instruction at all, or else requesting
an alternate instruction that, while inadequate, provided at least some support for his
defense").
6 Emphasis added.
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No. 67039-5-1/11
Because the inclusion of the erroneous burden of proof in the defense proposed
instruction did not set up the instructional error, contribute even in part to the error, or
mislead the trial court in any manner, we conclude the invited error doctrine does not
preclude review.
Harmless Error
In the alternative, the State contends the error was harmless because the to-
convict instruction set forth the State's burden to prove forcible compulsion beyond a
reasonable doubt, and the instructions directed the jury to consider all the evidence.
Because the consent jury instruction violated due process, "reversal is ordinarily the
proper remedy unless the State can prove the error was harmless beyond a reasonable
doubt." W.R., 181 Wn.2d at 770.
Although W.R. involved a bench trial, the analysis of harmless error provides
guidance. In W.R.. the defendant initially denied having any sexual contact but later
testified at trial that sexual intercourse was consensual. W.R., 181 Wn.2d at 760. At
the conclusion of the bench trial, the judge stated credibility was the key issue and the
defendant was not credible. W.R., 181 Wn.2d at 761. The judge concluded the State
had proved rape in the second degree beyond a reasonable doubt and the defendant
failed to prove consent by a preponderance of the evidence. W.R., 181 Wn.2d at 761.
The State argued any error related to the burden of proof on consent was
harmless because the trial judge found the defendant's guilt rested on credibility
determinations that were not subject to review on appeal. W.R., 181 Wn.2d at 770.
The Supreme Court disagreed. The court held that because the trier offact and the
parties were acting under a misunderstanding of the law, the State could not
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No. 67039-5-1/12
demonstrate beyond a reasonable doubt that consideration of the correct burden of
proof would not have "swayed" the decision of the fact finder. W.R., 181 Wn.2d at 770.
[W]e cannot overlook the fact that the trial judge, in making his credibility
determinations, acted within the incorrect framework.
The defense and prosecution both relied on an incorrect
understanding of the law when they fashioned and presented their
arguments surrounding consent. Creating a reasonable doubt for the
defense is far easier than proving the defense by a preponderance of the
evidence. And the trial court's express conclusion was that W.R. did not
prove consent. .. . The record does not show any consideration ofthe
interplay between consent and forcible compulsion under the negates
analysis, making it impossible for us to conclude beyond a reasonable
doubt that a reasonable fact finder would not have been swayed by
arguments made using the correct burden of proof.
W.R., 181 Wn.2dat770.
Here, as in W.R., credibility was a primary issue. Ortiz-Triana initially denied
having sex with M.P. but testified at trial that sexual intercourse was consensual. As the
court states in W.R., even if the evidence does not establish consent by a
preponderance, it may still be sufficient to raise a reasonable doubt on the element of
forcible compulsion. SeeW.R., 181 Wn.2d at 766 ("credible evidence ofconsent
necessarily raises doubt as to the defendant's guilt"). While the to-convict instruction
informed the jury the State had the burden of proving forcible compulsion, the
instructions provided no guidance on the correct relationship between consent and
forcible compulsion. Nor did the instructions suggest or clarify how the jury was to
assess the evidence of consent if itfound Ortiz-Triana failed to prove consent by a
preponderance of the evidence.
As in W.R., because the trier of fact "acted within the incorrect framework," the
record does not establish beyond a reasonable doubt that an understanding ofthe
correct burden of proof would not have affected the outcome. W.R.. 181 Wn.2d at 770.
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No. 67039-5-1/13
We reverse Ortiz-Triana's conviction and remand for a new trial.
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WE CONCUR:
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