(concurring in the result) — At trial Gallagher’s counsel requested that the court give the 11 Washington Pattern Jury Instructions: Criminal 10.51 (2d ed. 1994) (WPIC) accomplice liability instruction he now challenges on appeal. Because he invited the error of which he now complains and because it was not ineffective assistance for his trial counsel to request a pattern instruction not yet disapproved by the court, I would decide this case on invited error grounds.
A defendant is precluded from challenging an instruction he proposed:
“The instruction given is one which the defendant himself proposed. A party may not request an instruction and later complain on appeal that the requested instruction was given. Ball v. Smith, 87 Wn.2d 717, 556 P.2d 936 (1976); Vangemert v. McCalmon, 68 Wn.2d 618, 414 P.2d 617 (1966). The defendant’s challenge to the instruction must therefore fail.”
*616State v. Henderson, 114 Wn.2d 867, 870, 792 P.2d 514 (1990) (quoting State v. Boyer, 91 Wn.2d 342, 345, 588 P.2d 1151 (1979)) (emphasis added by Henderson court).
This has been the law for more than 20 years. See, e.g., Boyer, 91 Wn.2d 342 (a unanimous decision of our Supreme Court). Gallagher is precluded from challenging the court’s giving of the accomplice liability instruction he proposed.
Nor may Gallagher circumvent this longstanding rule (that a party may not request an instruction and later complain on appeal that the requested instruction was given) by asserting that his counsel was ineffective in requesting that the court give the pattern jury instruction. In State v. Summers, 107 Wn. App. 373, 380-82, 28 P.3d 780, 43 P.3d 526 (2001), the defendant advanced virtually identical arguments in challenging his conviction for unlawful possession of a firearm under a jury instruction that was previously held defective in State v. Anderson, 141 Wn.2d 357, 366, 5 P.3d 1247 (2000).9 This court rejected Summers’s claim as invited error, explaining that
Representation is deemed constitutionally sufficient unless (1) considering all the circumstances, the attorney’s performance was below objective standards of reasonableness, and (2) with reasonable probability, the outcome would have differed if the attorney had performed adequately. State v. Stenson, 132 Wn.2d 668, 705-06, 940 P.2d 1239 (1997) (citing Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)), cert. denied, 523 U.S. 1008 (1998). . . . .
In [State v.] Studd[, 137 Wn.2d 533, 546-47, 973 P2d 1049 (1999)], the defendant also claimed that his attorney was ineffective for proposing a flawed self defense instruction. At the time of trial, however, case law held that the proposed self defense instruction was constitutional. Thus, our Supreme Court rejected this claim because “[trial] counsel can hardly be *617faulted for requesting a jury instruction based upon a then-unquestioned WPIC 16.02.” Studd, 137 Wn.2d at 551.
Summers, 107 Wn. App. at 382.
Likewise, Gallagher’s counsel cannot be said to have rendered deficient representation by requesting WPIC 10.51 before the Supreme Court issued State v. Cronin, 142 Wn.2d 568, 579, 14 P.3d 752 (2000).10 For at the time of Gallagher’s trial, WPIC 10.51 was the accomplice liability instruction approved by the Supreme Court’s own pattern jury instruction process. Gallagher’s claim of ineffective assistance of counsel is also groundless.
That said, I agree that Gallagher’s challenge to the accomplice liability instruction fails on its merits. The instruction could not have misled the jury into believing that it could convict the defendant based on proof of his knowledge that his actions would promote a crime other than the crime charged, nor could it have relieved the State of its burden of proving all of the elements of the crime charged. Thus, I concur with the majority’s holding that the defective instruction defining accomplice liability was harmless error, but I would instead hold that the error was invited.
Review denied at 148 Wn.2d 1023 (2003).
In Anderson, our Supreme Court held that knowledge was a nonstatutory element of the crime of unlawful possession of a firearm; therefore a to-convict instruction that failed to require the jury find knowledge was defective. 141 Wn.2d at 366-67.
In State v. Roberts, 142 Wn.2d 471, 509-10, 14 P.3d 713 (2000) our Supreme Court declared defective an instruction similar to WPIC 10.51. Roberts and Cronin were filed on December 14, 2000. Gallagher’s trial began more than a year before, on August 16, 1999, and judgment and sentence were entered October 22, 1999.