(dissenting) — I dissent because I believe that the trial court did not commit an error in giving jury instruction 20, an instruction relating to the defense of self-defense. I would, therefore, affirm the decision of the Court of Appeals as well as that of the trial court.
Preliminarily, it is worth noting that although the Defendant asserts that the trial court erred in giving instruction 20, he failed at trial to except to the instruction.1 Ordinarily, such a failure precludes consideration of an alleged instructional error for the first time on appeal. RAP 2.5(a). A reviewing court may, however, overlook such a failure in cases where the claimed error is a "manifest error affecting a constitutional right.” RAP 2.5(a)(3).2 Indeed, it was pursuant to this rule that the Court of Appeals, Division Three, accepted review, although it rejected the Defendant’s argument regarding the asserted error, and affirmed the Defendant’s conviction. State v. LeFaber, 77 Wn. App. 766, 770-71, 772, 893 P.2d 1140 (1995).
When a defendant raises an issue of constitutional magnitude that was not addressed at trial, thus properly raising the issue for the first time on appeal, he or she retains the burden of demonstrating that the alleged error was committed and that it affected his or her rights. State v. McFarland, 127 Wn.2d 322, 333, 899 P.2d 1251 *905(1995) (citing State v. Scott, 110 Wn.2d 682, 688, 757 P.2d 492 (1988)). Regardless of whether the issue is properly preserved for review, or is raised for the first time on appeal, the burden is to show that an error was committed and that it affected a defendant’s rights.
Despite his apparent satisfaction with instruction 20 at trial, LeFaber now alleges that the instruction was a misstatement of the law on self-defense. He contends, in that regard, that the instruction allowed the jury to avoid considering the reasonableness of his subjective perceptions at the time of the shooting, thus allowing it to ground its verdict on a finding that there was, from an objective standpoint, no actual imminent danger. In essence, LeFaber claims that there was error because the jury could have inferred an incorrect interpretation of the law from the instructions that were given. The majority agrees with LeFaber’s assertion that the instruction is fatally flawed, stating that "Ijjury instructions must more than adequately convey the law of self-defense” and must, instead, "make the relevant legal standard ' " 'manifestly apparent to the average juror.’ ” ’ ” Majority Op. at 900 (quoting State v. Allery, 101 Wn.2d 591, 595, 682 P.2d 312 (1984), which quotes State v. Painter, 27 Wn. App. 708, 713, 620 P.2d 1001 (1980), review denied, 95 Wn.2d 1008 (1981)).
I disagree with the result the majority reaches, being satisfied that the quoted language applies in only certain circumstances, circumstances that are not here present. Thus, application of that rule here is inappropriate, and gives life to a test that is not suited to this case. Where, as here, there is a question as to "whether the trial court committed error in its instructions to the jury. . . . the test is whether the jury was informed, or could understand from the instructions as a whole,” the correct status of the law. State v. Acosta, 101 Wn.2d 612, 622, 683 P.2d 1069 (1984). In Acosta, this court held that the instructions at issue failed to inform the jury that the State must prove the absence of self-defense beyond a reasonable doubt. Acosta, 101 Wn.2d at 622. Similarly, in State v. Allery, 101 Wn.2d at 595, decided the same day as Acosta, we con-*906eluded that the instructions at issue there failed to inform the jury that they should consider the self-defense issue in light of what the defendant knew prior to the incident as well as what the defendant knew at the time of the incident. In both of these cases, the jury instructions were considered to have inadequately informed the jury because a vital portion of the law of self-defense was absent from the jury instructions. This is precisely the situation that existed in Painter; as well as in State v. Fischer, 23 Wn. App. 756, 598 P.2d 742, review denied, 92 Wn.2d 1038 (1979), the decision upon which the Painter court relied for the proposition that an "instruction can be said to be sufficient only if it makes the subjective standard manifestly apparent to the average juror.” Fischer, 23 Wn. App. at 759.
The situation here is different from those confronting this court in Acosta and Allery, and the Court of Appeals in Painter and Fischer. That is so because the instruction in this case does not omit any vital point of law. Significantly, instruction 20 provides, that "[hjomicide is justifiable when committed in the lawful defense of the defendant or any person in the defendant’s presence or company when the defendant reasonably believes that the person slain intends to inflict death or great personal injury and there is imminent danger of such harm being accomplished.” Clerk’s Papers at 36. This instruction allowed LeFaber’s counsel to argue to the jury that the facts supported a conclusion that LeFaber reasonably believed that: (1) the person slain intended to inflict death or great personal injury; and (2) there was imminent danger of such harm being accomplished. In sum, it cannot be said that the trial court omitted a reference to these vital points of law. Indeed, the majority acknowledges that the instruction does not necessarily misstate the law because "a juror could read instruction 20 to arrive at the proper law” on self-defense. Majority Op. at 902.
In concluding that LeFaber’s conviction must be reversed, the majority subjects instruction 20 to grammatical scrutiny so intense that it would warm the heart of a *907seasoned professor of English. Majority Op. at 902. Unfortunately, the approach taken by the majority turns the appropriate legal test on its head, effectively placing no instruction beyond grammatical assault. Unlike the rules that apply to statutory construction, the test for determining whether a trial court has committed error in the giving of a jury instruction is not based on a hyper-technical application of strict rules of grammar. Rather, as noted above, the appropriate test here is whether the jury could understand from the instructions as a whole the correct state of the law. While, perhaps, the law on self-defense could have been stated more clearly than it was in instruction 20, I agree with the Court of Appeals that a reasonable jury could have understood the correct state of the law on self-defense from that instruction. Furthermore, as the majority observes, instruction 20 is superior to the pattern instruction, WPIC 16.02,3 upon which it was apparently modeled. Majority Op. at 902.
In my judgment, therefore, the Court of Appeals was correct in concluding that the trial court did not err in giving instruction 20. The Defendant’s conviction should be affirmed.
Durham, C.J., and Guy and Talmadge, JJ., concur with Alexander, J.
Reconsideration denied May 13, 1996.
The record is somewhat unclear as to whether defense counsel merely failed to except to the giving of the instruction, or whether he affirmatively assented to the instruction or proposed one with similar language. At oral argument before this court, the State asserted that "both counsel proposed instruction number 20.” Oral argument tape 1 (Nov. 18, 1995). LeFaber’s appellate counsel, who had also served as trial counsel, did not directly contradict the State’s assertion, but said instead that he recalled that he "did propose an instruction. Normally it’s my practice [that] we only file for the record those instructions with respect to which we take an objection.” Oral argument tape 1 (Nov. 18, 1995). If the record were more clear on this issue, an argument may have been made that this issue should be precluded under a theory of invited error. See State v. Henderson, 114 Wn.2d 867, 870, 792 P.2d 514 (1990).
Rules of Appellate Procedure 2.5(a) provides, in relevant part, as follows:
"The appellate court may refuse to review any claim of error which was not raised in the trial court. However, a party may raise the following claimed errors for the first time in the appellate court: ... (3) manifest error aifecting a constitutional right.”
WPIC 16.02 reads, in part, as follows:
“Homicide is justifiable when committed in the lawful defense of the slayer when:
"(1) the slayer reasonably believed that the person slain intended to inflict death or great personal injury;
"(2) there was imminent danger of such harm being accomplished; and
"(3) the slayer employed such force and means as a reasonably prudent person would use under the same or similar conditions as they reasonably appeared to the slayer, taking into consideration all the facts and circumstances as they appeared to him, at the time of the incident.”