Court of Appeals Division I
State of Washington

Opinion Information Sheet

			

 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHIGNTON,
                                                 )         No. 65575-2-I
                      Respondent,                )
                                                 )         DIVISION ONE
              v.                                 )
                                                 )         UNPUBLISHED OPINION
MARY JAMIS LAKILADO,                             )
                                                 )
                      Appellant.                           FILED: March 19, 2012
                                                 )
                                                 )

                                                 )

       Appelwick, J.  --  Lakilado appeals her conviction for assault in the second 

degree, arguing that she was denied her right to a fair trial by an erroneous jury 

instruction, an incompetent interpreter, and ineffective assistance of counsel.  

Alternatively, she argues her sentencing enhancement must be reversed based 

on an erroneous unanimity instruction.  Any error at trial was harmless, and 

Lakilado is barred from raising her sentencing enhancement argument under the 

invited error doctrine.  We affirm.

                                        FACTS

       On October 7, 2007, Mary Lakilado attended a party at a house rented by 

Babo Keny and three other men.  Keny and most of the people attending were 

Sudanese.  Members of the Sudanese community often gather for such house 

parties or for church functions.  Lakilado is part of the Sudanese community.  

       Olympia Williams also attended the house party, going along with her 

coworker, Latoya Jackson, and Jackson's boyfriend Tito.  While Tito is 

Sudanese, Jackson and Williams are not.  Jackson had met Lakilado several  

No. 65575-2-I/2

times before that night, while accompanying Tito to earlier parties.  At one such 

earlier event, Jackson had seen Lakilado with a man Lakilado described as her 

boyfriend.  

       At the party on October 7, the house became crowded.  Keny was acting 

as the disc jockey (DJ), playing music while guests danced in the center of the 

room.  Keny testified that Lakilado spent most of the evening away from the 

center dancing area, standing instead near his DJ station.  

       Williams testified she was standing at the edge of the room with Jackson 

when she asked a male guest for a piece of gum.  Jackson recognized the man 

as Lakilado's boyfriend.  Lakilado then approached and spoke to her boyfriend

in a language that Williams did not understand.  Lakilado's boyfriend quickly 

moved to another part of the room.  Williams and Jackson then walked over to 

Lakilado to explain that Williams had not meant any offense in speaking to 

Lakilado's boyfriend.  Lakilado hit Williams in the face with a glass bottle, 

breaking the bottle and injuring Williams.  One of the men who lived in the house 

called 911, and Williams was eventually taken to the hospital in an ambulance.   

       Lakilado testified that she did not assault Williams that night, or even see 

the assault.  Keny also testified on Lakilado's behalf, as did Lakilado's friend 

Karamella Auko, who was at the party and was with Lakilado both before and 

after the party.  

       Lakilado was charged with assault in the second degree, with a deadly 

weapon enhancement.  A jury found her guilty as charged in February, 2009.  

       Lakilado filed a motion for a new trial, and new counsel was substituted.  

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No. 65575-2-I/3

The trial court denied that motion in April 2010.  The trial court imposed a 

standard range sentence.  Lakilado timely appeals.

                                    DISCUSSION

   I.  Jury Instructions Defining Recklessness

       The State must generally prove every element of an offense charged 

beyond a reasonable doubt.  State v. Wheeler, 145 Wn.2d 116, 120, 34 P.3d 

799 (2001).  The elements of the charged crime, assault in the second degree, 

were set out in jury instruction 7, which was based on RCW 9A.36.021(1)(a):

              (1)  That on or about October 7, 2007, the defendant 
           intentionally assaulted Olympia Williams;

              (2)  That the defendant thereby recklessly inflicted 
           substantial bodily harm on Olympia Williams; and

              (3)  That the acts occurred in the State of Washington.

Thus, the second degree assault instruction contains two separate mental 

states, each corresponding to a separate act: (1)  intentionality with the 

assaultive act; and (2) recklessness with the infliction of substantial bodily harm.  

State v. McKague, 159 Wn. App. 489, 509, 246 P.3d 558 (2011), aff'd, 172 

Wn.2d 802 262 P.3d 1225 (2012).  

       Jury instruction 9 defined "intentionally":  "A person acts with intent or 

intentionally when acting with the objective or purpose to accomplish a result 

which constitutes a crime." And, jury instruction 11 defined "recklessly":

              A person is reckless or acts recklessly when he or she 
           knows of and disregards a substantial risk that a wrongful act 
           may occur and this disregard is a gross deviation from conduct 
           that a reasonable person would exercise in the same situation. 

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No. 65575-2-I/4

              When recklessness is required to establish an element of a 
           crime, the element is also is [sic] established if a person acts 
           intentionally or knowingly.

(Emphasis added.)

       Lakilado argues that jury instruction 11 was improper and relieved the 

State of its burden of proving the second element of the crime.  She contends, in 

essence, that the instruction created a mandatory presumption, naturally leading 

the jury to an erroneous understanding that a finding of intentional assault under 

the first element would automatically establish a finding that she acted recklessly 

under the second element.  A mandatory presumption is one that requires the 

jury to find a presumed fact from a proven fact.  State v. Atkins, 156 Wn. App. 

799, 807, 236 P.3d 897 (2010).  Mandatory presumptions violate a defendant's 

right to due process if they relieve the State of its obligation to prove all of the 

elements of the crime charged.  Id. at 808.  

       Lakilado relies principally on Hayward to support her argument.  State v. 

Hayward, 152 Wn. App. 632, 217 P.3d 354 (2009).  In that case, the trial court 

administered a "to convict"       instruction for assault in the second degree, 

essentially identical to the one here.  Id. at 643.  It then provided an additional 

recklessness instruction, stating: "'Recklessness also is established if a person 

acts intentionally.'"  Id. On review, the court concluded that this additional jury 

instruction was defective, and improperly collapsed the two discrete elements.  

Id. at 645.  The instruction conflated the intent the jury had to find regarding 

Hayward's assault with intent to cause substantial bodily harm required under 

the second element.  Id.         The court held that this created a mandatory 

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No. 65575-2-I/5

presumption that relieved the State of its burden of proving the reckless infliction 

of bodily harm, and violated Hayward's due process rights.  Id.        This is precisely 

the result that Lakilado now seeks.  

       But, Lakilado's argument fails to recognize or adequately address the fact 

that both Divisions One and Two of the Court of Appeals have considered this 

issue after Hayward and reached the opposite result.  In McKague, Division Two 

concluded that a trial court may avoid the problem in Hayward by giving a 

correct  "recklessness"     instruction -- one that does not create mandatory 

presumption.  159 Wn. App. 510.  The "recklessness" instruction at McKague's 

trial provided: "When recklessness as to a particular fact is required to establish 

an element of a crime, the element           is also established if a person acts 

intentionally or knowingly."  Id. at 509-10.  This instruction is consistent with the 

2008 version of Washington's           practice series pattern instruction.  11 

Washington Practice: Washington Pattern Jury Instructions: Criminal 10.03, at 
209 (3d ed. 2008) (WPIC).1       The McKague court expressly held that such an 

instruction removed the confusion in Hayward, and did not create a mandatory 

presumption.  159 Wn. App. 510.         And, the instruction given in Lakilado's trial 

was identical to that given in McKague, devoid of the ambiguity that created a

mandatory presumption in Hayward.  

1 The pattern instruction provides: 

[When recklessness [as to a particular [result] [fact]] is required to establish an 
element of the crime, the element is also established if a person acts 
[intentionally] [or] [knowingly] [as to that [result] [fact]].]

11 WPIC 10.03, at 209.
                                           5 

No. 65575-2-I/6

       Division One addressed this issue in State v. Holzknecht, 157 Wn. App. 

754, 238 P.3d 1233 (2010),  review denied, 170 Wn.2d 1029, 249 P.3d 623 

(2011).  In that case, the disputed "recklessness" instruction was more akin to 

that given in Hayward.  It provided, in relevant part, "'Recklessness is also 

established if a person acts intentionally or knowingly.'"  Holzknecht, 157 Wn. 

App. at 762.  This court concluded that even this more ambiguous instruction 

was sufficient, on the heels of the basic "to convict" instruction, to correctly 

inform the jury of the applicable law: 

           The instructions made clear that a different mental state must 
           be determined for each element: intent as to assault, and 
           recklessness as to infliction of substantial bodily harm.  The 
           instructions thus clearly require two separate inquiries, and 
           nothing in the knowledge instruction suggests otherwise. 

Id. at 766.  The court held that the instructions did not result in a mandatory 

presumption and thus did not relieve the State of its burden of proving every 

element.  Id. at 766.  In Lakilado's case, the instructions given for the same 

crime actually included more safeguards against such a mandatory presumption, 

emphasizing that each element must be considered independently by the jury.  

Applying Holznecht, we hold that the jury instructions did not create a mandatory 

presumption or relieve the State of its burden of proof.

   II. Interpretation

       Lakilado argues she was denied due process and her right to present a 

defense, because an incompetent interpreter was used for the testimony of her 

two  key witnesses.  She points out that  the interpreter, Walid Farhoud, was 

uncertified, and contends he committed numerous interpretive errors.  She also 

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No. 65575-2-I/7

raised these arguments in a motion for a new trial.  The trial court made oral 

findings and denied Lakilado's motion based on those findings.  A trial court's 

denial of a motion for a new trial will not be reversed on appeal unless the 

defendant makes a clear showing that the trial court abused its discretion.  State 

v. Pete, 152 Wn.2d 546, 552, 98 P.3d 803 (2004).  Discretion is abused when 

the trial court's decision is manifestly unreasonable, or is exercised on untenable 

grounds or for untenable reasons.  State v. Ramos, 83 Wn. App. 622, 636, 922 

P.2d 193 (1996).

       Farhoud acted as the interpreter for defense witnesses Auko and Keny at 

trial.  Farhoud also interpreted for Keny at a pretrial interview on December 8, 

2008.  At that interview, Farhoud confirmed that Keny understood the standard 

Arabic that Farhoud used and that Farhoud understood Keny's Sudanese 

dialect.  Farhoud speaks Modern Standard Arabic, a universal, common dialect, 

which shares its core with the Sudanese dialect that Auko and Keny speak.  

Farhoud stated both witnesses speak and understand Modern Standard Arabic, 

and he and they had no trouble understanding each other.  According to 

Farhoud's declaration submitted by the State, Farhoud has been an Arabic 

interpreter in federal, state, and local courts since 1985.  He has written articles 

and books relating to      English-Arabic court interpretation.  Throughout trial,

Lakilado was provided with separate interpreters.  

       In Washington, a defendant has a right to a competent interpreter.  State 

v. Teshome, 122 Wn. App. 705, 711, 94 P.3d 1004 (2004).  This right is based 

on "'the Sixth Amendment constitutional right to confront witnesses and the right 

                                           7 

No. 65575-2-I/8

inherent in a fair trial to be present at one's own trial.'"  Id. at 709-10 (quotation 

marks omitted) (quoting State v. Gonzales-Morales, 138 Wn.2d 374, 379, 979 

P.2d 826 (1999)).  The legislature has also codified this right in part in chapter 

2.43 RCW.  Every non-English-speaking person in a legal proceeding is entitled 

to the services of a court-appointed, qualified interpreter.  RCW 2.43.030.  The 

interpreter must abide by the code of ethics and take an oath to interpret the 

person's statements "to the best of the interpreter's skill and judgment."         RCW 

2.43.050.  If the non-English-speaking person is a witness compelled to appear, 

the court must use a certified interpreter unless good cause is found.  RCW 

2.43.030(1)(b).  Good cause may be that no certified interpreter is reasonably 

available or that there are no certified interpreters in the language spoken.  

RCW 2.43.030(1)(b)(i)-(ii).  If the court finds good cause to use an uncertified 

interpreter, it shall make a preliminary determination on the record that the 

proposed interpreter is capable of communicating effectively with the court and 

the person needing the interpreter.  RCW 2.43.030(2).  The court must also 

determine that the interpreter will abide by the code of ethics established by 

court rules.  RCW 2.43.030(2).

       For the purposes of her motion for a new trial, Lakilado had another 

Arabic interpreter, Nada Ali, listen to a recording of the testimony at trial from 

Keny and Auko.  Ali created and submitted a transcript of both Keny and Auko's 

testimony in the form of a table, including her sometimes different 

interpretations, both from English into Arabic and from Arabic into English.  

Lakilado points to various discrepancies between Farhoud's interpretations and 

                                           8 

No. 65575-2-I/9

Ali's interpretations, and argues         Farhoud's interpretations were plainly 

erroneous,  contained errors affecting substantive issues, and affected the

perceived credibility of her witnesses.  

       In response to Lakilado's motion for a new trial, the trial court noted there 

are no certified Arabic interpreters in Washington.  It conceded that it failed to 

make the inquiry into the interpreter's qualifications on the record, as required by 

RCW 2.43.030(2).  But, it found that Lakilado waived this error by failing to 

object, and that failure to inquire on the record was a harmless error in any 

event, where it did not result in any prejudice.  The trial court then turned to the 

alleged errors in interpretation and concluded that any discrepancies were 

"either nonmaterial or they did not affect the outcome of the trial."  The trial court 

found that "the result would have been the same even if the jury had heard Dr. 

Ali's interpretation."  Absent prejudice, the trial court denied the motion for a new 

trial.

       A.    Waiver

       When Lakilado's counsel introduced Farhoud as the interpreter                  for 

defense witness Keny, counsel did not state whether Farhoud was certified.  The 

trial court administered an oath, but it was not the oath required under RCW 

2.43.050.  Lakilado failed to object to the trial court's procedure or omission at 

trial.  

       The general rule is that appellate courts will not consider issues raised for 

the first time on appeal.  RAP 2.5(a); State v. Kirkman, 159 Wn.2d 918, 926, 155 

P.3d 125 (2007).  A claim of error may be raised for the first time on appeal if it 

                                           9 

No. 65575-2-I/10

is a manifest error affecting a constitutional right.  Id. at 926; RAP 2.5(a)(3).  The 

defendant must identify the constitutional error and also must show how the 

alleged error resulted in actual prejudice to his or her rights at trial.  Id. at 926-

27.  The State argues that because the trial court's error here was statutory, 

Lakilado's failure to raise this issue at trial resulted in her waiving it.  The State 

points out that the general rule -- that statutory errors are waived unless raised at 

trial -- applies to errors in the statutory procedures relating to interpreters.  State 

v. Serrano, 95 Wn. App. 700, 704, 977 P.2d 47 (1999).  

       To the extent that Lakilado's argument focuses on the trial court's errors 

and procedural deficiencies under chapter  2.43            RCW, we hold that this

argument was waived by failing to object.  To the extent that Lakilado's argument 

focuses on the constitutional claims, we analyze them below.

       B.    Competent Interpretation

       Lakilado correctly asserts the trial court failed to comply with the statute 

by failing to properly evaluate Farhoud's competency on the record.           Since she 

did not object, this failure is not reviewable unless it is manifest constitutional 

error.  Kirkman, 159 Wn.2d at 926.  On the motion for new trial, the trial court 

noted there are no certified Arabic interpreters in Washington.  It explained that 

if it had heard Farhoud's "impressive" credentials at trial, it would have found 

him to be qualified.  The  trial court's failure to comply with the statute was 

harmless.

       Lakilado's argument extends beyond an assertion of the trial court's 

statutory errors, however.  She contends the alleged defects in Farhoud's 

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No. 65575-2-I/11

interpretation deprived her of her constitutional right to competent interpretation.  

Teshome,  122 Wn. App. at 711.  One central measure of competence in 

interpretation is accuracy.  Id. at 712-13.  The Ninth Circuit has held that direct 

evidence of incorrectly translated words is persuasive evidence of incompetent 

interpreting.  Id. at 713 (relying on Perez-Lastor v. Immigration & Naturalization 

Serv., 208 F.3d 773, 778 (9th Cir. 2000).  And, the Seventh Circuit has framed 

the question as whether the accuracy and scope of a translation is subject to 

grave doubt.  United States v. Cirrincione, 780 F.2d 620, 634 (7th Cir. 1985).  

Lakilado relies on Ali's transcript and table, contending that a comparison of Ali's 

interpretation with Farhoud's reflects several signs of incompetence.  

       But, as the trial court recognized, interpreting from one language to 

another is not an exact science, nor is there always a "correct" or perfect 

interpretation:

       Words have different meanings, depending on the context.  Words 
       in one language do not always           have the exact equivalent in 
       another language so interpreters, particularly those doing 
       instantaneous [interpretations], have to exercise judgment when 
       they're engaged in this process.  Thus, the mere fact that Dr. Ali's 
       interpretation is different from Mr. [Farhoud's] does not necessarily 
       mean that one is right and the other is wrong.

The State points out that the premise of Lakilado's argument is that Ali's 

interpretation is correct and Farhoud's is incorrect.  But, this is a premise that 

the trial court was not persuaded of, and that Lakilado has failed to prove.

       Lakilado identifies two main substantive areas where she claims 

interpretive errors prejudiced her case: how much Lakilado had been drinking

and Lakilado's location in the room at the time of the assault.  Both Lakilado and 

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No. 65575-2-I/12

the State include the contested passages and their side-by-side interpretations 

from Farhoud and Ali.  The State contends the disparate interpretations Lakilado 

relies on are often indistinguishable in substance or hinge on words that could 

have either meaning based on context.  The State points out Farhoud had the 

benefit of being physically present during the testimony.            Accordingly,  Ali's 

different interpretations, particularly of such words that have multiple meanings 

based on their context, do not establish that Farhoud was incompetent or even 

incorrect.

       As the trial court stated, the plain import of Keny and Auko's testimony to 

Lakilado's defense was that, while they did not see the assault, they believed 

Lakilado to be in another part of the room when it occurred.  Their testimony, 

both in Farhoud's interpretation that the jury heard and in Ali's subsequent 

interpretation, corroborated Lakilado's testimony denying that she committed the 

assault.  The trial court also concluded that alcohol consumption did not play an 

important role in the case -- the State did not present evidence that Lakilado was 

intoxicated when she committed the assault, but focused instead on the fact that 

she was motivated by anger or jealousy.  The trial court concluded that there 

was no prejudice and that the result of the case would have been the same even 

if the jury had heard Ali's interpretation.  We agree.  Lakilado has not adequately 

demonstrated that the alleged errors supported her assertion that Farhoud was 

incompetent.  She has not established that Farhoud's interpretation prejudiced 

the outcome of her case.  Lakilado has not established a manifest constitutional 

error.  

                                           12 

No. 65575-2-I/13

       C.    Ineffective Assistance of Counsel

       Lakilado  next  argues she received ineffective assistance of counsel, 

based on her attorney's failure to object to the two alleged errors addressed 

above.   She points first to her attorney's failure to object when the trial court 

committed the procedural error of failing to consider Farhoud's competence on 

the record, as required under RCW 2.43.030.  And, second, Lakilado argues it 

was error for her attorney not to object, in light of the interpretive errors.  She 

asserts those errors should have been apparent to her trial attorney.  

       To prevail on a claim of ineffective assistance of counsel, a defendant 

must show that counsel's performance fell below an objective standard of 

reasonableness based on consideration of all the circumstances, and that the 

deficient performance prejudiced the trial.  Strickland v. Washington, 466 U.S. 

668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Nichols, 161 Wn.2d 

1, 8, 162 P.3d 1122 (2007).  If one of the two prongs of the test is absent, we 

need not inquire further.  Strickland, 466 U.S. at 697; State v. Foster, 140 Wn. 

App. 266, 273, 166 P.3d 726 (2007).  The reasonableness inquiry presumes 

effective representation and requires the defendant to show the absence of 

legitimate strategic or tactical reasons for the challenged conduct.  State v. 

McFarland, 127 Wn.2d 322, 336, 899 P.2d 1251 (1995).  Prejudice is present if 

there is a reasonable probability that, but for counsel's error, the result would 

have been different.  Id. at 334-35.  Judicial scrutiny of counsel's performance 

must be highly deferential.  Strickland, 466 U.S. at 689.  Where a claim of 

deficiency rests on defense counsel's failure to object, the defendant bears the 

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No. 65575-2-I/14

burden of showing that the objection likely would have been sustained.  

McFarland, 127 Wn.2d at 336.

       The trial court recognized it failed to follow the statutory procedure under 

RCW 2.43.030 requiring it to make a preliminary determination that Farhoud was 

able to interpret accurately.  It also failed to administer the proper oath as 

required under RCW 2.43.050.  But, Lakilado's argument that her counsel was 

ineffective for failing to object is unpersuasive,         because the trial court's 

procedural error did not result in prejudice.  As addressed above, the statutory 

error was a harmless one.  The trial court found that Farhoud had "impressive"

credentials and stated it would have found him to be qualified.  It also noted that 

Farhoud's declaration indicated that he and the defense witnesses did not have 

difficulty understanding each other.  By contrast, neither Keny nor Auko 

indicated, via declaration or otherwise, that they were unable to understand 

Farhoud.  Prejudice has not been established.  An objection at trial would not 

have changed the outcome of the trial, and the failure to object thus does not 

constitute ineffective assistance of counsel.  

       Lakilado next argues her counsel was ineffective for failing to object to the 

alleged interpretive errors.  This argument is similarly unpersuasive.  As the trial 

court recognized, her attorney did not speak Arabic and so did not have a basis 

for evaluating the interpreter.  The accuracy of the interpretation could only be 

determined by having a third party fluent in both English and Arabic review the 

transcript.  Lakilado asserts she provided some basis for her counsel to object 

when she mentioned that she could not understand Farhoud when he was 

                                           14 

No. 65575-2-I/15

interpreting for Keny and Auko and that she perceived inaccuracies in Farhoud's 

interpretation.  But, this occurred only after the testimony was over.  The trial 

court also noted that Lakilado was not fluent in English, so her ability to 

ascertain whether the witnesses' testimony was being accurately translated was 

questionable.  

       We hold that Lakilado has not overcome the presumption of competent 

representation, nor has she demonstrated her counsel's performance prejudiced 

her case.  Her argument fails both prongs of the Strickland analysis.

   III. Special Verdict

       Lakilado argues in the alternative that even if her conviction is affirmed, 

the special verdict finding of the deadly weapon enhancement must be reversed, 

because the trial court gave an improper            instruction.  She contends       the 

instruction erroneously suggested to the jury that unanimity was required for a 

"no" verdict.  While unanimity is required to find the presence of a special 

finding, it is not required to find the absence of such a special finding.  State v. 

Bashaw, 169 Wn.2d 133, 147, 234 P.3d 195 (2010).

       The disputed instruction provided, in part:

       If you find the defendant guilty of assault in the second degree, you 
       will then use the special verdict form and fill in the blank with the 
       answer "yes" or "no" according to the decision you reach.  Because 
       this is a criminal case, all twelve of you must agree in order to 
       answer the special verdict form.  In order to answer the special 
       verdict form "yes", you must unanimously be satisfied beyond a 
       reasonable doubt that "yes"         is the correct answer.  If you 
       unanimously have a reasonable doubt as to this question, you 
       must answer "no".

The original instruction contained the word "unanimously" in the final sentence, 

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No. 65575-2-I/16

but upon reading the instruction to the jury, the court concluded that the 

sentence was incorrect.  After the parties agreed to the change, the court 

instructed the jurors to cross out the word "unanimously" from that sentence.  

       We review de novo claimed errors of law in jury instructions.  State v. 

Campbell, 163 Wn. App. 394, 400, 260 P.3d 235 (2011).  In so doing, we 

consider "the context of the instructions as a whole," rather than viewing each 

instruction as an isolated mandate.  State v. Benn, 120 Wn.2d 631, 654-55, 845 

P.2d 289 (1993).  In order for jury instructions to be sufficient, they must be 

"'readily understood and not misleading to the ordinary mind.'"  Campbell, 163 

Wn. App. at 400 (quoting State v. Dana, 73 Wn.2d 533, 537, 439 P.2d 403 

(1968)).

       Lakilado relies principally on Bashaw for support.  In Bashaw, the special 

verdict form instruction told jurors: "'Since this is a criminal case, all twelve of 

you must agree on the answer to the special verdict.'"        169 Wn.2d at 139.  The 

Supreme Court reaffirmed its holding from State v. Goldberg, 149 Wn.2d 888, 72 

P.3d 1083 (2003), that unanimity was not required for a "no" determination on a 

special verdict.  d. at 147.  It concluded that the instruction amounted to a plain 

and erroneous suggestion that unanimity was required for either determination.  

Id.  As Lakilado points out, the instruction given in her case contained a 

sentence that was essentially the same as the one the Supreme Court held 

constituted reversible error.  In her case, the instruction read: "Because this is a 

criminal case, all twelve of you must agree in order to answer the special verdict 

form."  

                                           16 

No. 65575-2-I/17

       The State responds that this error was invited by Lakilado, and she is 

thus precluded from raising this argument.  "A party may not request an 

instruction and later complain on appeal that the requested instruction was 

given.  State v. Boyer, 91 Wn.2d 342, 345, 588 P.2d 1151 (1979).  The invited 

error doctrine bars relief regardless of whether counsel intentionally or 

inadvertently encouraged the error.  City of Seattle v. Patu, 147 Wn.2d 717, 720, 

58 P.3d 273 (2002).  

       The State originally proposed a special verdict form instruction that was

from the 2005 version of the pattern instructions.  11A Washington Practice: 

Washington Pattern Jury Instructions: Criminal 160.00, at 274 (2d ed. Supp. 

2005).  That version did not include the sentence that was rejected in Bashaw

that suggested there was a general unanimity requirement, even for a "no"

verdict.  The proposed 2005 version stated, in pertinent part:

           If you find the defendant guilty of this crime, you will then use 
           the special verdict form and fill in the blank with the answer 
           "yes" or "no" according to the decision you reach.  In order to 
           answer the special verdict form "yes", you must unanimously be 
           satisfied beyond a reasonable doubt that "yes" is the correct 
           answer.

Thus, while the 2005 version was older and out of date, it did not contain the 

error that Lakilado now complains of.  But, Lakilado's counsel requested that the

proposed 2005 instruction be replaced with the erroneous 2008 version.  She 

stated:
       I noticed that the instructions that the State has submitted, which Ms. 
       Atchison [the prosecutor] was also unaware of, they're all dated 2005; 
       and in December 2008, most of them were updated and the language is 
       quite different.  

                                           17 

No. 65575-2-I/18

              There's probably about six or seven instructions that are very 
       different to where just inserting a few words wouldn't qualify, so I'm 
       hoping that I could have -- I think Ms. Atchison wanted an opportunity to 
       update her packet as well. 

It was in response to this request that the State offered the 2008 version of 11A

WPIC 160.00, at 630, which was the instruction that the trial court ultimately 

gave to the jury (after the modification).  

       After instructing the jurors to cross out the word "unanimously" from the 

final sentence of the instruction, the trial court asked counsel from both sides to 

go on record with their position on that modification.  Lakilado's attorney stated,

"I actually agreed with that change.  I think that the 'unanimous' was incorrectly 

stated in that sentence as, of course, they don't have to be unanimous if they 

don't agree."  The erroneous instruction was thus proffered by the State and 

given by the trial court as a direct response to Lakilado's own complaint and 

request.  Lakilado's counsel explicitly agreed to the submission of instruction 12 

with the trial court's modification.  We hold that the invited error doctrine is 

applicable here.  Lakilado may not now complain on appeal that the instruction 

was given.

       We affirm.

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No. 65575-2-I/19

       WE CONCUR:

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